Copyhype

Water is wet, fire is hot, and people hate lawyers.

None of these statements are noteworthy enough to even bear repeating. You probably couldn’t walk down the street without running into someone who is willing to share their distaste with the legal profession.

And this distaste is nothing new. You can find examples of it in historical sources stretching back thousands of years. In the 1930 book Law and the Modern Mind, Jerome Frank has this to say:

Diatribes against lawyers contain such words and phrases as “duplicity,” “equivocation,” “evasions,” “a vast system of deception,” “juggling,” “sleight of hand,” “craft and circumvention,” “the art of puzzling and confounding,” “darken by elucidation,” “the pettifogging, hypocritical, brigandage rampant under forms of law.” Kipling expresses the feeling of many in his fling at the “tribe who describes with a gibe the perversions of Justice.” ¹Law and the Modern Mind, 1930, pg. 5 (Transaction Publishers, 2008).

Last week, over at Volokh Conspiracy, Orin Kerr — accurately and vividly — described non-lawyers’ perceptions with legal institutions as displaying “an almost pathological aversion to the common sense and the justice of the situation.”

I think the ideas expressed above raise issues that are worth discussing. Yes, this site is focused primarily on one specific area of law. Most of the time I talk about the issues that arise from the “copyright wars”: discussions about how instruments of culture, knowledge, and entertainment are created and disseminated. These discussions inherently deal with copyright law as the foundation of this creation and dissemination in today’s society, but they also draw in broader concepts of the law: the role of courts; the interpretation of constitutions, statutes, and case law; the nature of liability.

Understanding these issues in-depth requires some modicum of “legal literacy.” But I think it’s safe to say that there are plenty of issues outside the copyright realm that also require a bit of legal literacy to understand better; however, legal literacy remains an elusive goal. The problem is caused by misunderstandings of the law and various stumbling blocks that get in the way of understanding, two of which I want to highlight today.

I don’t think improving legal literacy requires going to law school, but I do think it is beneficial to society. In Adventures in Law & Justice: Exploring Big Legal Questions in Everyday Life, Australian legal researcher and commentator Bryan Horrigan explores the public’s understanding of the law and why it is important to improve that understanding. In the introduction, he underlines the key themes that he addresses in the book:

One is that law and justice matter for citizens and not just law-makers, and that law and justice concerns deeply touch both our everyday and community lives. Another is that much popular and professional understanding of law is critically flawed, and that these flaws are obstacles to better understanding, communication, and handling of ongoing law and justice challenges. A third theme is that law and society influence one another in more ways than many people realise […] A final theme is the need for better public legal literacy as a vital part of citizenship education, and to help hold all three arms of government accountable to the people.

Complexity and Technicalities

Many of the complaints against lawyers written above focus on the belief that the legal profession wrongly gets in the way of justice: “perverting it” or showing a “pathological aversion” to it. Are these complaints warranted? Jerome Frank offers some insights:

What lies back of this popular criticism? It appears to be founded on the belief that the lawyers complicate the law, and complicate it wantonly and unnecessarily, that, if the legal profession did not interpose its craftiness and guile, the law could be clear, exact and certain. The layman thinks that it would be possible so to revise the law books that they would become something like logarithm tables, that the lawyers could, if only they would, contrive some kind of legal slide-rule for finding exact legal answers.

The error of the layman, states Frank, is blaming the complexity of law on the lawyers. But the complexity is not a result of lawyers; rather, it is the result of the complexity of society itself. No one in history has been able to set down a complete set of rules that could anticipate every possible scenario in the future. Frank continues, “The law deals with human relations in their most complicated aspects. The whole confused, shifting helter-skelter of life parades before it — more confused than ever, in our kaleidoscopic age.”

He concludes, emphatically: “Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.”

The other common theme in complaints against the law is its apparent aversion to “common sense.” Sure, the layman may say, the law is complex, but so many of its results seem to defy logic. How much weight does this criticism hold? Preeminent jurist Oliver Wendell Holmes described the peculiar challenges of understanding the Law in his seminal work, The Common Law:

[O]ther tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic — it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

Related somewhat to the previously mentioned criticisms is this notion of “technicalities” in the legal world. The above-mentioned post by Orin Kerr attempts to explain why “lawyers seem so obsessed with technicalities” by examining the institutional roles within the legal system.

Kerr writes, “The law often breaks down power among different institutions, with each institution getting one part of a broader problem. That means that each institution only has limited power, and the question of how that institution is supposed to act is limited by the specific grant of power given to that particular institution.” He uses the example of a routine criminal case. The ultimate goal in criminal law is to determine guilt. But the process of reaching that goal is broken into discrete institutions, with each institution playing a very small and specific role — from the investigator, prosecutor, and grand jury to the defense attorney, trial judge, and trial jury. Not understanding how this system works is what causes the frustration among non-lawyers that the law seems to run counter to “common sense.”

Alice Speaks With Humpty-Dumpty ²See Lewis Carroll, Through the Looking Glass, chap 6.

A proper understanding of the complexity of the law and the role of legal institutions may go a long way in improving public legal literacy. But if we revisit those common complaints against lawyers, we can see another source of criticism: lawyers’ use (or misuse) of words and language. Many non-lawyers vent frustration at the seeming linguistic chicanery of those in the legal profession. While slick speakers run circles around “what the meaning of ‘is’ is,” common sense and justice escape out the back door. The idea seems to be that if “the law” is simply a collection of rules, then all this arguing over what these rules mean is just semantic sleight-of-hand designed to circumvent the clear meaning of the law. To understand a law, one can simply open a book, read what the law says and parse its meaning the same way one parses sentence in a Stephen King novel.

Bryan Horrigan calls this the “rule-book metaphor” and identifies it as a stumbling block to popular understanding of the law. In his chapter on “Myths, Fictions, and Realities,” Horrigan says this stumbling block “assumes that, whatever law’s real nature, finding and understanding any particular law is just like opening and reading a dictionary or catalogue.” But that assumption is incorrect. As Horrigan points out, “just like floating candles bobbing around in a bowl of  water, legal language sits immersed in a context which affects its meaning.  Words alone do not determine meaning.

Earlier this year, Kerr picks up on what I think is another source of this frustration among non-lawyers: the use of legal “terms of art”. Many times in the law, there are words or phrases used that mean one thing in the general sense but have quite a specific meaning within the law. Kerr uses the example of the phrase “reasonable expectation of privacy.” He explains:

The key idea is that the phrase “reasonable expectation of privacy” is a constitutional term of art, much like other constitutional terms of art like “due process,” “free speech,” “strict scrutiny,” or “fundamental rights.” You normally can’t answer if something violates “due process” just by asking if there was a “process” that seemed “due,” much like you can’t answer if a regulation satisfies “strict scrutiny” by scrutinizing the regulation while being “strict.” In all of these cases, the phrase captures a complicated body of caselaw; You can’t just repeat the name for the test and think that the name accurately captures the doctrine. Rather, you need to recognize the test as a term of art that reflects a large body of caselaw, and you need to get the answer from the caselaw.

[…]

[T]he key point is that a “reasonable expectation of privacy” is not just an empirical question into whether a reasonable person would expect privacy. You can’t just mull over the words “reasonable expectation of privacy” and derive an answer from those words any more than you can mull over words like “due process” and derive an answer from for what the due process clause forbids.

The frustration, I believe, derives from a sort of “sez who?” The non-lawyer might ask, “Why do lawyers (or judges) get to decide what these phrases mean? I can read, I have a dictionary.”

The short answer to this response is: that’s how the law works. The development of these legal terms of art and the tests that accompany them is a result of the processes of the common law system we live under that reflects the principle of the “rule of law“. The Legal Theory Lexicon provides a good introduction to the values of the rule of law:

What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot’s of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.

That’s not to say that all laws are perfect, or even good: quite the opposite. There will always be areas in the law where reform is necessary; indeed, it would be shocking if this weren’t the case. When you consider “the whole confused, shifting helter-skelter of life” parading in front of the law, it should be apparent that ideal laws are almost never attainable. This idea even has even been given a name by legal scholars: “second best” or “nonideal theory.” The idea of the “second best” in law echoes what Voltaire once said: “The perfect is the enemy of the good.”

Conclusion

There are plenty of other obstacles to understanding the law besides the few I highlighted above. I used examples of complaints about lawyers in this discussion not because I think lawyers are totally blameless in the deficiencies of the legal system but rather to point out where those criticisms are based on misunderstandings of other topics. The legal profession certainly has its share of “bad apples,” like any other profession. Then again, lawyers play an important role in a functioning society and can and should be held to high ethical standards. All that aside, improving legal literacy is a worthy goal and one I hope this site helps promote.