Over at Popehat, Ken White provides a “Miranda round-up” following the Dzhokhar Tsarnaev deluge of all the posts and reports he found worthwhile. It barely scratches the surface, which comes as no surprise given the vast interest that inevitably follows a news event of such epic proportions, but it’s necessary to exercise discretion under these circumstances lest one’s point be diluted and unworthy efforts find their way into the mix. My own contribution didn’t make the cut, which is the price one pays for trying.
A comment to Ken’s post by Orvis Barfley (which I believe to be his real name) caught my eye.
man, this is good stuff. orin kerr and lawscribe knock it out of the park. i wonder how long one should expect to need to read this blog before one can reasonably expect to pass the bar. assuming one should want to, of course.Much as I realize he’s funnin’, there is an element of truth in there. No, not about Orin Kerr or Lawscribe knocking it out of the park, despite whatever quibbles I might have with their posts, but about non-lawyers thinking that by reading blog posts they are half-way to acing the bar exam.
It’s the bit of truth behind a comment like this that makes me want to throw my keyboard against the wall so that it shatters into a million pieces. Do blawgers do more harm than good?
I profess to try to illuminate rather than make people stupider for having read something at SJ. But at best, you get a tiny, minuscule piece of the puzzle. My posts tend to focus on a minute slice of law, a discrete issue under highly specific circumstances. Yet non-lawyer readers invariably try to extrapolate them into concepts of such great breadth as to make them bizarrely wrong and inapplicable. As much as I may try to rein in their enthusiasm, usually to their anger and resentment since we’re supposed to be on the same team, they rarely understand why.
This isn’t a class in law school. This isn’t “truth,” whatever that means. You do not know the law from reading blawgs, and you are not prepared to take the bar exam, no less inform others of how they should conduct themselves.
Lawyers argue over nuances that make all the difference in lawful and unlawful all the time. Good lawyers. Smart lawyers. And still, we have constant disagreements. Courts rule one way, and then a court rules another way. and then the Supreme Court splits 5-4 on almost everything. If the law was sufficiently clear that lawyers ought to know it, how then can we explain why four Supreme Court justices get it wrong so often?
The law isn’t easy. Lawyers may try their best to make it comprehensible, but the most we can do is offer our analysis, our understanding. It means nothing. It’s not that we’re necessarily wrong, but we’re also not necessarily right. Given the frailty of any lawyer’s opinion, the only safe thing to say is that our opinion means nothing.
And yet, non-lawyers read it and think they now know the law. Oh my God, what have we done?
There is something lawyers call “black letter law,” which means legal concepts that are so well-established that no one disputes them. They are usually unhelpful, as the rest of the law is about the million exceptions to black letter law. We call this the “tail wagging the dog,” and the dog gets the crap wagged out of him all the time.
But the next question is which exception applies, which exception wins or doesn’t win under any given set of circumstances. Lawyers fight over such things constantly, in court and on blogs. Read one view and you think you know the answer. Read another and you are confused. Read the very serious, sober and thorough analysis of a law professor and it’s like going to law school. Except they are just as likely to be wrong as anyone else. It’s more than citing case names or statutes, though these seem monumentally convincing to the non-lawyer. After all, if a case in 1912 said so, it must be, right?
There was a question that made its way around the internet years ago, whether the web made people smarter or stupider. There is no doubt that the web provides access to vast amounts of information. The “open source” law advocates labor under the misguided belief that if you put all the information online, people will somehow have the ability to assimilate and understand it. What they have done is put a loaded gun into the hands of children, though they have yet to realize it.
Am I handing you a loaded gun too? It pains me to think that’s the case, but it may well be. On the sidebar, I write “This is not legal advice.” I’m not kidding. Reading SJ, or even Popehat, does not make you a lawyer. Reading Orin Kerr or Lawscribe does not make you a lawyer. In fact, you could be stupider for having done so, despite our respective efforts to try to illuminate.
If so, I am sorry. I never meant to make anyone stupider for having read my blawg. But the fact is, reading SJ does not make you a lawyer. Not even close.
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Don’t you want to go back to the days of “Reading the Law”. I figure that we could create an authoritative list of blog posts and after reading 5 or 6 six hundred you could ace the bar and set up shop.
As the joke about 100 lawyers at the bottom of the ocean goes, that would be a good start.
You’re making it too hard. The correct answer to every legal question is “It depends.”
Sure, that’s not what they said in law school (and not what Orin says – but he’s a lawprof, after all), and it won’t help on the bar exam or in court.
But it’s close to the one thing all serious practicing lawyers can agree on.
So, problem solved.
But it’s such an unsatisfying answer. As opposed to, say, “42.”
There is a strange conflation of information with knowledge and another of being informed with being in a position of expertise. The phenomenon is clearly not limited to law blogs. Part of my background is in forensic anthropology and I am always uncomfortable with the number of people who are smart enough to know that they don’t know about forensics from TV but somehow think that reading forensic blogs grants not only an inside scoop but true expertise in forensics.
Perhaps more frustrating and more immediately frightening, I’m a volunteer EMT and the frequency with which patients have diagnosed themselves with the of the internet is incredible. More often than not, they are mistaken. Regrettably, when they are mistaken they often get themselves into more trouble.
You’re not a scientist. You’re not a doctor. You’re not a lawyer. You’re just more informed than you were before.
Information without understanding is a very dangerous thing.
In particular when the person with the information is a legislator.
Oh dang… And I was schedule to take the exam this Friday.
In all seriousness, if SJ has taught me anything it’s that I need to “lawyer up” whenever dealing with anyone in the judicial system.
Thanks to all the quality content at SJ, Popehat, and other legal blogs, I am now qualified to give legal advice on Yahoo Answers.
And since the people asking questions over there don’t seem to be satisfied with “Perhaps you should consult a competent local attorney”, I don’t feel so bad advising them that pro se cases are really easy to win and judges really love it when pro se defendants quote that Al Pacino line from “… And Justice For All”.
I wonder how many people won’t realize you’re just kidding. You are just kidding, right?
Well, Popehat and SJ won’t get one up to speed to pass the bar and practice law, but that’s just because you lack seo maximization tips and probably don’t even know how to get clients through your youtube channels. That said, if everyone read scotusblog and ignored volokh, then the blogosphere might have more interesting conversations. Time to get back to work…after i raise my avvo rating and apply for top 3500 superlawyer in 3 discrete legal areas.
The Virginia Board of Bar Examiners wants to know what do you mean by “back”? 🙂
It’s an interesting phenomena. No one would take seriously a person who claimed to have learned medicine from medical blogs and TV shows. And yet people often claim expertise in law (and other fields) based on extensive (to be generous here) reading and research.
This seems to be confined to man-made fields of study. Most people presume that you can grasp the essentials of law, history, or philosophy far more quickly and much easier than fields grounded in natural law, such as medicine, physics, or engineering.
Which is the reverse of reality. Man-made fields are full of exceptions and nuances; natural laws simply are. Gravity works, the laws of motion always apply, and the police never think it’s as funny as you do.
So, don’t blame yourself for the lack of understanding in your readers. I personally have learned a great deal from your blog; I also understand that my current knowledge wouldn’t qualify me to be a secretary in a law firm, let alone an attorney.
An instant classic.
I suppose that some of these folks are concerned that they are being manipulated by unscrupulous authorities on the technical aspects of criminal law. If that is the case they might look a criminal law blog to try to check facts. I think Burney’s book is a better choice.
As a non-lawyer who has been reading this blog and Popehat for years, and Volokh and Olson’s Overlawyered for even more years, I have learned a great deal about the law, but like Bruce, I remain quite aware that this “knowledge” wouldn’t qualify me to be a secretary at a law firm, let alone an attorney. The two most important things I have learned from Scott and Ken are: 1) Don’t talk to the cops and 2) Yes, you really do need an attorney. Indeed, I learned these lessons so well that I recently gave my mother legal advice. She was considering challenging a speeding ticket. I told her she needed to get an attorney. I told her that if it was worth her while to challenge it, then it was worth getting an attorney, and that if she didn’t want to do that, she should just plead guilty and pay the fine. Mom hired an attorney, and he was able to get the charge reduced. So, thanks for that.
SJ, Popehat, Volokh and Overlawyered. Irony.
I’d say I have learned a few things from law blogs…none of which involves what the law is.
1. Never talk to the police without an attorney, except if reporting a crime…if then.
2. Don’t rely on the internet or advertisements for a lawyer unless you have literally no other choice.
3. Don’t represent yourself. It almost never ends well.
4. At the first sign of legal trouble, go talk to a good lawyer in a relevant practice. There’s always more than the letter of the law to consider, and a layman trying to even judge what the letter is will very likely get it wrong.
Basically, treat the legal profession like you would anything else requiring expert guidance. You’d call an electrician for re-wiring your house, so call a lawyer for dealing with law.
Don’t throw in the towel.
You mentioned black letter law. One thing as a pro per that chaps my hide is how often a pro per has to, with court citations (or statutes), back up even “black letter law.” If I make a statement that I know is black letter law, I have to (rightly) back it up, but I have seen lawyers misrepresent black letter law, and the judge laps it up as if the misrepresentation is correct on the mere say so of the opposing attorney.
Maybe what you think is black letter law isn’t what lawyers think is black letter law?