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Trolljudge

Scott Greenfield has written a rather scathing critique of Clay Shirky's talk at the 2012 Law via the Internet Conference.  From where I sit, it is a companion piece to an earlier e-mail he sent me,  questioning my good taste in inviting Mr. Shirky. [ The claim that he had e-mailed me, it turns out, is untrue.  At the time we invited Mr. Shirky, I received mail from another individual with similar views and I misremembered.  My sincere apologies to Mr. Greenfield on this point, but the next sentence still holds. He also claims not to have attacked the LII, which I address below in a comment.]  That's not at issue here, and neither is the exuberant trollery that makes up the first half of Mr. Greenfield's cri de coeur and the last half of his title.  For those I have no comment.  He misconceives what we do here at the LII, and that's disappointing, certainly, but it's also common.  It's the common nature of the misconception, and not the uncommon rudeness of Mr. Greenfield, that moves me to respond.

Some years ago, I was asked to do a guest appearance in a legal-process seminar here at Cornell, not because I know a damn thing about legal process, but because there was some interest in the relationship between that and legal publishing.  There were 13 or 14 students in the room.  I told the students that, as a publisher, I was unusually interested in the idea that ignorance of the law is no excuse. But rather than ginning up a pretend-law-professor's dialog about the implied obligations of the state, I asked them to imagine for themselves just who might be ignorant and what they might be ignorant about.  Most of the students stopped a hair short of the implied melodrama of a pro se defendant in a murder case, but almost all said that the setting was a criminal matter of great seriousness, and the ignorant person a non-lawyer. No misdemeanors for these kids.  The lone exception was a German LLM student who said, "Hell, no, it's some guy who's got a problem with a regulation".

There's a great tendency among both lawyers and the public to confuse what we do here with providing the scaffolding for pro se people.  They're a vanishingly small part of our audience.  Many of the people who use us appear to be non-lawyer professionals who have some continuous need for legal information but are not lawyers -- think, for example, of police officers or of hospital managers doing public benefits law, or of anyone in a regulated business.  Most of the rest are lawyers themselves, often lawyers in other countries or lawyers in small firms, solo practice, government, and other practice settings that are economically disqualified from access to the expensive online services that WEXIS provides.  Some are in the neighborhood where Mr. Greenfield hangs his shingle: people who are having serious, traumatic encounters with the legal system.  We have no way to tell for sure how many are representing themselves, or about what if they are.  We do have some indicators: the e-mail that's thrown over our transom is about 20 times as likely to be about someone who wants help in finding a lawyer, or wants to complain about the lawyer they found, than it is to be from someone who thinks they can get by without one.  We also know some helpful statistics:

  • Unique pageviews on the site over the past month: 5,587,154
  • Unique pageviews for Title 18 of the USC: 204,023
  • Unique pageviews for the Federal Rules of Evidence: 233,208
  • Unique pageviews for the Federal Rules of Criminal Procedure: 393,637

These are all the resources we offer that I can imagine being of interest to a criminal defendant, although I do omit a few significant and likely attractive Supreme Court cases like Miranda (998 pageviews).  That's more than made up for by the fact that I've attributed all the Federal Rules and Federal criminal statute traffic to non-lawyers, which is surely far from the case.  So, taking even this generous view of our criminal traffic, the total is just shy of 15% of our overall usage.  People are here for other reasons.

For non-lawyers, most of the usage can be categorized as either self-education or risk management.  They simply want to know what the law says about something they think they might do, something that has happened to them, something a lawyer or another professional has told them.  They are assessing consequences. They're doing the same kind of self-help that people do with WebMD, in other words.  I suppose we are unfortunate in that most misuse of the LII would not limit mischief by provoking the same Darwinian benefits as might accrue to self-prescription in WebMD, but we'll get by.

The idea that ignorance of the law is no excuse arose first in Roman law, but was prominently stated in English by Sir Edward Coke in his commentary on Littleton's Tenures in 1628.  A few pages later, Coke raises the bogeyman of self-harm, and it's been alive and well ever since.  But, honestly, it's really some guy with a regulatory problem.  Mr. Greenfield would, at this point, pivot and tell us that his problem is not with reading but with interpretation and commentary, which was pretty much Coke's position too. (Actually, Coke's main concern was seeing to it that people could read the law in a language that was open to the English-speaking nobility, a goal that Mr. Greenfield would surely embrace.)

What about interpretation and commentary?  It's worth observing that public comment on regulations is often a requirement.  And, frankly, if every commercial activity that is potentially touched by a statute, regulation, or judicial opinion required interpretive intervention by a lawyer, economic life in the United States would come to a standstill. Clearly there is a lot of non-lawyer interpretation, and yet the bodies are not littering the streets.  Sure, the BoingBoing crowd likes to go on about freedom and democracy and other high-sounding things, as with any political commentary, but so what?  Second-guessing is not yet a crime. If it were, Mr. Greenfield would have a lot more business, and perhaps that's the point.

4 Responses to “A response to Mr. Greenfield”

  1. Out in the Twitterverse, Mr. Greenfield rightly points out that he didn't e-mail me when Shirky was invited. That's true [narrowly so as it turned out, see next comment], and I've apologized for my own confusion (there was another person who did). He claims not to have attacked the LII. I haven't said that he did so. I would rather say that he is so vehement on the subject of laypeople commenting on the law as to appear to thoroughly disagree with one of the bedrock assumptions we make, which is that non-lawyers can read and understand it. I don't claim to be able to make fine distinctions between responsible and irresponsible commentary on the law or on the outcome of particular cases. But I certainly would not claim, as Mr. Greenfield's framing of the issues would lead us to believe, that all non-lawyer commentary on the law is the work of irresponsible ignoramuses who read BoingBoing. There are a good many irresponsible ignoramuses, and some no doubt read BoingBoing, while others prefer the National Review, Popular Mechanics, or the United States Constitution.

    Over here in the disgrace-to-Cornell corner, we subscribe to Entertainment Weekly and the Economist, with occasional forays into American Theater, Opera News, and the liner notes to loud and incoherent electric jazz albums from the mid-70's. Sadly, we can't seem to get over the habit of commenting on things, including the laws that we are expected to obey. Things would be so much more orderly if we could.

  2. The following is the text of an email message sent by Mr. Greenfield to our communications director on 19 September. It was subsequently forwarded to me. It does not mention Mr. Shirky by name.
    ====================

    ---------- Forwarded message ----------
    From:
    Date: Wednesday, September 19, 2012
    Subject: Re: Greetings from the Legal Information Institute (LII).
    To: wjl27@cornell.edu

    Paul,

    Noting that the email was sent out to a broad spectrum of the
    blawgosphere, I'm sure some of its recipients, those inclined to use
    press releases as fodder for lack of substance, will be happy to
    promote your conference. I write back for a different reason.

    As a blawger and Cornel alumnus, I very much appreciate this
    initiative, and applaud it. Yet, reading your press release, I'm
    deeply disturbed by the inability to distinguish between those who are
    substantive contributors to technological advancement of the law and
    social media charlatans. Some of your presenters are nothing more than
    self-proclaimed tech gurus who push every hare-brained scheme around,
    often dangerous and frequently in conflict with ethical obligations.

    I also note that you don't have a single practicing lawyer presenting.
    There will not be a single voice speaking to the constraints and
    issues that go hand in hand with the benefits of open technology. It
    appears you've been taken in by the cheerleaders, and lack any grasp
    of the problems. What a shame.

    If I was to write about your conference, it would be decidedly
    negative. Out of respect for the good your project does, I will not be
    critical. However, your conference reflects a seriously troubled
    direction.

    Scott Greenfield
    ILR '79
    Simple Justice

  3. To anyone who attended the conference, this Luddite's off-color trollery didn't merit a response, but I still appreciated this thoughtful expression of common sense from Tom.

  4. I'm not even quite sure what the complaint is that he's lodging. As best as I can tell, he's angry that people who are not lawyers sometimes become concerned about legal matters that are out of their depth, something something something, Clay Shirky sucks. And I'm pretty sure he's arguing that it's "not so fine" for people to "understand [the law] and use it without need to pay for lawyers," which is an awfully convenient perspective for an attorney. I recall the Catholic Church taking a similar perspective on the Bible in the 1500s, something something something, The Reformation.

    I think that Clay has occasionally been guilty of hand-waving to deal with logical disconnects in his theses (I recall accusing him, some years ago, of believing that the news will be reported by magic news gnomes), but no such hand-waving was on display on this occasion.

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