Monday, July 7, 2008
The rather shocking and highly amusing oversight by the Supreme Court in the Kennedy case, regarding the constitutionality of the death sentence for raping a child, has gotten me thinking. What is curious about it is how vividly it illustrates the superiority of the wisdom of interconnected crowds, for want of a better cliche, to the information gathering procedures that the Court uses.
Within days if not hours of the issuance of the opinion, which was the result of probably millions of dollars in legal fees over the course of the litigation, a blogger was able to point out an important factual error in the majority's effort. The most important thing in the story is not that somebody found an error. Such errors have no doubt been made for the whole history of the Court, though as law gets more and more complicated, they will probably become more frequent. Rather, the difference is that within hours of the error's being found, everybody knew about it. That is a result of the dramatic lowering of information costs caused by the Web.
It sheds a different light on the vaunted legal authority of the Supreme Court. Defenders of the court may wish to minimize the mistake, and I agree with those who say it won't change the result, though I think it should. But missing the existence of a federal law exactly on point is a big deal. It would get an associate fired from some law firms and would certainly be a black mark on your case for partnership. It's a sobering example of how easy it is to screw things up in law, one of the things I don't like about this profession.
But the more interesting point is how it changes the way we ought to think about legal authority. It appears the law finding mechanism we use to inform the Court about what the law is laughably inefficient in the era of the Web and the blogosphere. The Court is supposed to be, among other things, the really deep, really well informed body on our federal law, right? Yet they missed something a blogger came up with off the top of his head. It's like a PI spending a year looking for something, and getting it wrong, as you can show with five minutes on Google. All that time and money spent, and still a law missed that a legal blogger spotted in short order.
It's not so mysterious, really, and not as blameworthy as it sounds. Knowledge, as Hayek taught us, is very dispersed. Gathering it into a central body is difficult. Especially if you are using technology essentially unchanged from the 18th century, and computer technology from the 1980's at best.
Is there a way that the Court could take advantage of current social technologies to dramatically improve its understanding of the relevant law in any given case? Of course there is, but I'm not holding my breath. You could, for example, post all of the briefs in wiki format, or something similar, and then sift through the results. But any procedure you could come up with could be gamed, and it seems unlikely the federal judiciary could ever bring itself to modify its procedures to really take advantage of Web 2.0 sorts of tech, at least not until we are on Web 6.0 or so, or indeed before the Singularity gets here anyway. Perhaps some law clerk will be drafting the opinion and his computer will say back
<No, no, you're getting that wrong. There is a federal law on this -- here, I'll send you the cite.>