Monday, July 7, 2008

Jurisprudence and information
Tom Smith

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.>

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Tom Smith


I think this post dramatically overstates the case to say that an associate would be fired for a mistake like this, presuming that it was as peripheral to the main issue as this mistake. (Obviously, if the main rationale for the holding was the non-existence of a relevant federal statute, that would be different.) And as for making partner, I suspect that this is not an area in which the author is an expert. As a partner at an AmLaw 100 firm, and one who has spent more than fifteen years of his professional life working at four such firms, I would say that politics and luck are the main factors, not competence at legal research.

Posted by: y81 | Jul 7, 2008 7:30:15 PM

I worked at two major law firms (before making my escape to academia). If I'd made such a mistake the firm, wouldn't have had to fire me. I'd have resigned in shame. This was not peripheral to the main issue.

Posted by: Button | Jul 7, 2008 10:08:58 PM

I don't claim to be an expert on partnership processes, but I worked at a big firm in DC for 4 years and know a lot of people who went through the process at big firms. At a firm such as say Davis, Polk or another top 10 or 20 firm, I think you would be sunk. I certainly heard stories of people sunk by making errors no bigger than this. During my interview, I sat there while a lawyer proofread my resume and cover letter. There was a cult of accuracy at that firm, good for clients perhaps, but a major mistake like this would be a big problem for an aspiring lawyer. Similar story I bet at Cravath, Sullivan, etc. At Covington & Burling, where I was, an otherwise stellar tax attorney was dogged by her having missed a relevant tax reg on a matter. She may have made partner, but left to take a public sector job. I agree it is very political, but a major error gives your enemies something to hang their arguments on.

Posted by: Tom Smith | Jul 8, 2008 7:29:31 AM

So they missed an indirectly relevant statute, and of a vintage so as to undermine their 'evolving standards of decency' meme. Who cares? If they feel free to make up rights under mythical penumbras, why would they care what the body of law actually says?

Posted by: krome | Jul 8, 2008 10:02:44 AM

I suggested this a couple of years back--nobody seemed to think it was a very good idea then either!

Posted by: Jason Mazzone | Jul 9, 2008 1:48:44 PM

There's already a way to address problems like this. A petition for rehearing under S. Ct. R. 44.1. While granting it may be rare in the Supreme Court, a circumstance like this would be a relatively common basis to grant it in most appellate courts.

Posted by: BA | Jul 9, 2008 3:38:17 PM

don't see much point in blaming the parties/associates/partners; i doubt anyone really could have predicted that the national survey of child rape laws would ultimately form a key part of the majority opinion. bottom line: parties should just focus on the main legal arguments and analyses -- the supreme court will do whatever it does, and no one can really predict what they will do in any given case before they actually do it.

that being said, what about the law clerks?!?! not a single one of them went beyond the parties' and the amici briefs to fact-check something they were writing/their justices were signing onto and making into law? i find that the absolutely most appalling part of this whole embarrasing debacle.

Posted by: coa clerk | Jul 9, 2008 8:19:48 PM

Congratulations on the Above the Law shout-out.

Posted by: Steven | Jul 9, 2008 11:14:42 PM

Hi, where did you get this information can you please support this with some proof or you may say some good reference as I and others will really appreciate.

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Posted by: MBT Sale | Jun 3, 2011 2:45:37 AM

I suggested this a couple of years back--nobody seemed to think it was a very good idea then either!

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