The Day Tripper Dilemma

If I was hoping to court the legally-ignorant, politically conservative reader, yesterday would not have been a good day for me.  While lawprof Glenn Reynolds, Instapundit, couldn’t be  bothered to learn about the criminal justice system before opining about how to fix it, he had time to write about how mean I was to him. Not terribly surprising, given how lawprofs tend to be a bit sensitive.

What came of Reynolds’ post was a curious thing, a  swarm of his followers commenting in his defense. Most were just silly, reflecting the folks who follow his political agenda, and good for some lulz, but they raised an interesting dilemma: lacking education, practical experience or sufficient interest to learn about the substantive issues and problems involved, they ripped me a new one because the post here to which they were directed was the culmination of both numerous posts about Reynolds’ disastrous  Ham Sandwich Nation “fix” for the criminal justice system and even more numerous posts on the underlying issues.

One commenter made a good point, that my telling them to read a bunch of posts that would provide the substance that isn’t in the one post to which they were directed is “weaksauce.” He’s right. It’s not that this matters much, as they haven’t come because they have any sincere interest in the subject. If they did, they would already be knowledgeable and wouldn’t demand to be taught from the ground up.

But then, to the extent this is anything other than a humorous aside for those of us who are involved in criminal justice issues, it’s an opportunity to educate the poor souls who are limited by Reynolds deep commentary (Heh?), and their point that the one post they read wasn’t substantive is well-taken.

So if they can’t be expected to read a hundred posts (and it’s not really reasonable to expect them to do so), they lack any foundational knowledge on the subject and they’re generally disinclined to disagree with their political guru, is there any way to address this gap?

Bear in mind that when the post that made Reynolds cry was written, it wasn’t for the purpose of educating his followers but as the coda in the series of posts about his awful ideas to fix the system at the expense of defendants, which in turn was based on innumerable posts here about specific issues and problems with the system.  Way too much to include in one post (and likely one full-length book, for that matter), and completely unnecessary for regular readers here or people who are knowledgeable about criminal law.

Obviously, I can’t go back and rewrite the post as Criminal Law 101 for the benefit of Instapundit readers, with lengthy explanations that are obvious to the rest of us.  Perhaps I should have anticipated that Reynolds would get all butthurt about it, write a post with his deepest thoughts, and cause an influx of his readers to come here to salvage his damaged dignity, but I didn’t. And even if I had, it would have bored the daylights out of regular readers here. As SJ is neither political nor a plea for popularity among the Instapundit fans, the idea of writing a post in anticipation of the swarm seems outlandish.

One answer could be found on the flip side, if only Reynolds had an appreciation of the more thoughtful legal and practical impact of his politically driven ideas, such that his purportedly well-intended, if misguided, fixes were themselves more substantive, but it’s hardly useful to blame the guy who proffers bad ideas for not understanding why his ideas are bad.  If he did, he wouldn’t have done so in the first place.

One might expect him, as a lawprof, to try to gain a far better basis of knowledge before going off, but that was one of the primary points of my rant about Reynolds in the first place. And he’s playing to a political audience (which is a large part of the problem) rather than to an audience knowledgeable or seriously concerned about criminal law. It’s easy to pass off shallow ideas to those who know nothing about the practical impact.

Yet, I missed an opportunity to educate a not insignificant group of day trippers who think they’ve got a clue because they read tripe like Reynolds’  Ham Sandwich Nation. It’s a shame to pass up an opportunity like that. It’s a dilemma.  I regret not having done a far better job of making use of the opportunity to illuminate.

33 thoughts on “The Day Tripper Dilemma

  1. Dante

    You make a valid point, but your delivery is too arrogant. Not everyone is blessed with your abilities. Thank God.

  2. SHG

    I can’t please everybody, and I’m really not inclined to try. Do you really think my goal ought to be to make you like me? Want a tummy rub?

  3. REvers

    I think I’ve figured out why you’re having problems with the site loading.

    It’s not GoDaddy. The drool from that post’s response thread shorted out the Intertubes.

  4. REvers

    Where they will find me is in court, most likely.

    Assuming, of course, they know where the courthouse is.

  5. SHG

    Oddly, one of the things that particularly irked me about Reynolds law review article is that he didn’t credit Sol Wachtler for the ham sandwich phrase. Whatever happened to academics citing to the source?

  6. Linda

    I’m one of those “poor souls” who hasn’t read the Ham Sandwich essay, nor the 100 posts needed for substantive background.

    If you had been more respectful of Prof Reynolds and his audience (and by more respectful I mean turning the demeaning tone down a notch or two), I might have been curious to see what points you thought he was missing.

    Your tone sure curtails interest pretty quick, though. Makes me skeptical of your claim to “regret not having done a far better job of making use of the opportunity to illuminate.”

    Pretty sure you’d rather be smug than illuminating. But hey, assuming you are good at what you do, the arrogance is probably a key component. I wouldn’t want my defense attorney humble and/or insecure.

    So there’s that.

  7. SHG

    What in the world could possibly make you think how you feel about it matters to anyone? Are you the center of the universe? Is it my duty to please you, to use a tone that meets with your approval, to recreate my world to suit yours?  And if I did, you “might have been curious,” which should somehow bring vast joy into my life to have the potential to pique curiosity in some person whose existence means absolutely nothing to me?

    And because you don’t like my tone, it makes you, some person whose existence means absolutely nothing to me, skeptical of my claim?  Have you been diagnosed for pathological narcissism recently? Do you see how this works?

    So there’s that too.

  8. Linda

    Your post is in part about Instapundit readers. So, a comment from one such reader is perfectly appropriate. You’ve even got this handy little comment form for me!

    And me pointing out your rudeness & its impact is evidence I’m a narcissist? Whatevs.

  9. SHG

    I posted your comment. I’ve posted all the comments from Instapundit readers. I’ve let you have your say. And I get mine, that rest of the world, and specifically SJ, doesn’t exist to please you. Yes, narcissism. Exactly.

  10. NN

    If you didn’t read the hundred posts before this one or are a working lawyer, you are too stupid, or to be more generous, too ignorant, to understand the intracies of the issues and why Glenn Reynolds proposals are stupid. I don’t care what you think about me and if you call me on my tone, understand you are a narcisst and the world does not revolve around you.

    Perhaps you should just use this next time?

  11. SHG

    There’s a flaw in your theory: No one here put a gun to your head and forced you to come here, forced you to read this post or forced you to comment. No one here told you can’t read, or not read, anything you like. You have the option of reading or not reading. You have the option of commenting or not commenting.

    But if you do chose to come here, chose to read and chose to comment, you don’t get special dispensation from knowing what has been written here before and knowing the subject matter because you came at the behest of Reynolds. To come here at Reynolds behest and demand that I present my post in a form that suits your peculiar demands, that you be spoon fed exactly what you want in exactly the form you want it, without any need for you to do any of your own lifting, is utterly narcissistic. 

    It’s a pretty big flaw.

  12. ajwpip

    There is a reason that academics tend towards a certain style of debate. It isn’t that they don’t have egos or the desire to sneer at those they disagree with. It is that they have found that ad hominem and not substantively addressing their interlocutor makes them lose the argument and also wastes everyone else’s time.

    Questioning people’s motives is de facto arguing in bad faith. You might notice that Reynolds does nothing more than re-state your argument and tells people where to look at your argument (such as it is) in long form. So, assuming that he is unleashing a horde of conserve-o-bots to hurl invective at you out of hurt feelings is bad faith. It also misses his point – he wants to educate people and move policy in directions he cares about. He is a law professor. He got into the whole blogging thing long before anyone could have had a clue that it could lead to money or a goofy sort of fame. Debating and educating is obviously what he loves to do. He obviously has had to confront the ethical choices you are looking at in this post and has decided how he wants to handle himself.

    By linking to you he either gets to win the argument because you lose it. Or, he forces you to do a better job in making your case. In either case he gets to educate someone and promote his interests and values. Why don’t you think that this is what motivates him rather than some sort of petty narcissism? He is teaching you.

    You also got lots and lots of posts from people who clearly had some interest in the subject. Who do you think bothers to read political blogs? You will be shocked to find out that it is people interested in public policy.

    I am curious, do you think the repeated times that Reynolds acknowledged the shortness of his essay and said that it should be a beginning of a discussion should allow him some leeway to discuss the matter? He also links to many books and other authors so people can do further and deeper reading. You keep accusing Reynolds of not living up to some ethical standard in discussing these issues. Can you explain what the standard should be and how Reynolds failed to live up to it? It can’t be because of brevity. He offered a six page essay and apologized for its length and asked people to not take this as the be all and end all and pointed peopel to longer works on the matter. You yourself work in short form – and it is only in aggregate that you get to something marginally more substantive – Although I have now read four of your posts and think you have yet to fully engage with Reynolds’ argument. It appears like you think Reynolds should be taken to task for being wrong. If someone is wrong you correct them. You don’t insult them.

    I am not trying to defend Reynolds’
    feelings. He is a highly successful and public figure who seems to enjoy his life and not mind being called names etc. What I am trying to do is point out to you the pragmatic utility of a more substantive and less snarky pu

  13. SHG

    You’re a bit misguided. First, an ad hominem is an argument that you’re stupid, and therefore your ideas are stupid. It isn’t that your ideas are stupid and therefore you’re stupid. A big different. Second. I didn’t argue that Reynolds was acting in bad faith. The only thing remotely close is that I think he posted the link to me because he was butthurt. That’s also a big difference.

    Whether I agree with Reynolds otherwise about law, politics or the best flavor of ice cream, I don’t say he does so with any ill motive. Just that he’s wrong, and that he’s far afield from what he knows, and that someone with a soapbox like his needs to be more careful about spreading incredibly bad ideas. 

    As for his linking to me, it’s irrelevant. He brings people like you here. If you, who don’t even have the guts to put a name to your comments (that’s okay here, but it is nonetheless noted that you prefer to hide in the shadows where you take no responsibility, lack the guts to stand behind your statements and can claim anything with impunity) were interested in more than defending Reynolds honor (which is all you’ve done, your disclaimer notwithstanding), than you might matter. But you don’t.

    Do you know who reads here? Do you know how many people read here daily? No. You don’t have a clue.  But they’re all having a good laugh at your expense, because you’re talking about stuff we know and you don’t, and you’re the only one who doesn’t realize how silly you sound. It’s okay. You aren’t supposed to understand. And certainly being a Reynolds fan hasn’t helped.

  14. ajwpip

    Academics have actual standards as to what is supposed to be sourced or footnoted. As Reynolds makes clear in his article the phrase/concept has become ubiquitous. As he is not directly quoting he has no need to attribute what has become a TV and movie cliche. Attributing the quote is an interesting piece of legal history trivia but doesn’t achieve the purpose of allowing readers to analyze an argument or intellectual concept made by another, distinguish between Reynolds’ view and someone else’s, or offer details that are not covered in the main article. It can bug you on a creative/authorly level – but there is no academic reason to attribute the derivation of a turn of phrase.

  15. SHG

    Yeah. That’s why I wrote it irked me, not that he violated scholarly ethics. But thanks for explaining that anyway.

  16. ajwpip

    Ad Hominem comes in a few varieties. Such as guilt by association _ aka pointing out that I am a Reynolds fan and so that lessens my credibility. That is a form of Ad Hominem. Or, saying that I am posting anonymously so that makes me cowardly. That is Ad Hominem. Ad Hominem is arguing against the person not the argument. It literally means “to the person”. You seem to make something of a habit of ad hominem. Questioning credentials can either be an appeal to authority (not ad hominem nor necessarily a fallacy) but the way you handle it it does seem to be a mechanism to avoid the substantive base argument or as a subtle form of attributing minor properties (a type of Ad Hominem) to people you disagree with. It certainly is ad hominem to reference someone’s politics or opinions on unrelated matters (a form of “You would say that wouldn’t you..” a classic of ad hominem).

    You say that you are calling Reynolds names and saying he is an idiot etc. because he makes such terrible arguments. Your problem is that you skipped the step of showing his arguments to be irretrievably idiotic. You insist that someone familiar enough with your thinking would know that you won the argument so profoundly that the only obvious inference is that Reynolds must be an idiot. Typically, a little more back and forth and more substance is called for from you.

    The largest problem with you saying that Reynolds ideas are so bad therefor he must be an idiot is that it seems highly unlikely to me that smart people of good will couldn’t come to different opinions on such a complex matter. So, much so, that I am forced to wonder if you tend to think most people who disagree with you are idiots. That is not an intellectually healthy place to be. It can make you oblivious to your own possible errors and obnoxious to people who don’t deserve it.

  17. ajwpip

    Then why did you say, “whatever happened to academics citing the source”? You like to throw a lot of innuendo around.

    If I was guilty as sin and couldn’t depend on the facts to get me off I think you might be a tremendous lawyer in front of a certain kind of jury. That being said, debating public policy with you is like trying to catch a milkweed seed. It just floats around here and there with a logic all its own and it is difficult to pin down. It is an enjoyable past-time even if you can’t get much from it.

  18. SHG

    Nope. You don’t get to make up your own definitions. Things that you complain of as being ad hominems, which impugn your credibility, are merely material facts that are taken into account. Sorry, but you’re stuck with facts, even if they don’t reflect well on you. Don’t feel badly. Many people are unfamiliar with how facts and logic works. It’s not just you.

    And I didn’t say I was calling Reynolds names. That’s a misstatement of fact. I used an example, nothing more. You’ve heard of examples?

    As for people who disagree with me, that’s another point where, if you cared, you could find out the answer. But you can’t be bothered, so instead assume what you like. Makes no difference to me or anyone else. You can assume anything you want. It’s irrelevant.

    Finally, there is no issue of winning arguments. I have nothing to win from you or with you. If you, or perhaps all the Instyfans, decide that you’re right and I’m wrong, it doesn’t change anything. No one here cares. No one who is knowledgeable about criminal law cares. It’s just a bunch of goofy people being goofy together. It’s nothing.

  19. AP

    Reading how you’re dealing with the Instapundithadeen reminds me of those poorly dubbed Bruce Lee movies where a group of bad mofos would swarm Lee and be would proceed to kick the ever living shit out of them and he would end it all by saying “learn” while nodding his head.

  20. Dave

    I enjoy reading this. Why? Well, for the longest time, I watched Law and Order and thought, “Wow! What funny caricatures of the pompous, arrogant criminal defense lawyers!” And yet, here we are.

    Omigerd! I’m part of the cultz!

  21. robert wunder

    Dear Mr. Instapundit fans who have posted in ignorance on this blog:

    I have been a crininal defense attorney for longer than I care to mention. Ok, over 25 years, but i am not going to narrow it down further than that.
    You demand that Scott answers the professor’s brillaint idea to fix the criminal justice sytem. There are are so many reasons this thesis is flawed and so obviously come from one not familiar with defense, or prosecution for that matter, of accused criminals. Scott has already answered this question in so many ways if you would care to read his posts. I will simply give one reason out of the multitudes this brilliant idea would not, and has not, worked. Defense attorneys represent individuals, otherwise known as cliients, but also known as human beings and all that entails. They are not some fodder to make an academic point or to be sacraficed for some theoretical greater good. The defense attorney, as much as they may want to “stick” it to the system, has an ethical obligation to the client. Got it?

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