A response to Mr. Greenfield

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.