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The Importance of Theory in Law

Many years ago, before I was an attorney, I was involved in a then-infamous fight with a quite well-known but also quite obnoxious technical writer. The details are unimportant, but due to the influence he had over numerous 12-to-14-year-old wannabes (for which I believe he remains immensely proud), he was able to prevent my access to a certain Internet Relay Chat channel for quite some time.

The crux of the reason for my long-term banishment was that I mentioned the impact the supposed adult — I’ll call him “Jack Merridew” — was having on my ability to perform some of my work and that I suggested continued interference by Merridew might provoke a legal complaint. And that threw everyone into a tizzy. I had unknowingly committed the ultimate sin: I “confused RL with IRC”; that is, I ignored the unspoken (and idiotic) belief that “real life” and “Internet Relay Chat” are two separate things.

Today, we know better. Or do we?

I was reminded of this incident by a discussion on Twitter. An attorney there asked for ideas concerning the proposed invasion of privacy of various members of a digital support group for abused women. Apparently, he is representing someone who wishes to maintain their right to privacy. (As a side note, this is one of the main things I like about Twitter: the ability to pose quick questions to others in my field who may be able to provide insights I’ve not come up with myself.)

There was a brief mention of Electronic Data Discovery laws. But in thinking about the reasons why people who were not involved in the litigation might have a right to have their information protected, the first thought that came to my mind was “why not use arguments from what Jack Merridew used to disdainfully refer to as ‘RL’?”

Although many like to think of the Internet as some entirely new frontier, “in reality” it isn’t. And even if it were, human beings didn’t try to completely reinvent new systems of law from scratch whenever they encountered some “new frontier.” If they did, the United States legal system would not look as it does today. We would be missing our rich history in English common law that continues to be felt almost two-and-a-half centuries after the signing of the Declaration of Independence!

Lord Coke is alleged to have said,

He who knoweth the law, and knoweth not the reason thereof, soon forgetteth his superfluous learning. (William Everett Britton and Ralph Stanley Bauer, Cases on Business Law, p. 629 (1922).)

And the renowned Justice Oliver Wendell Holmes, Jr., in his 1897 law review article titled “The Path of Law,” stated that to be a good lawyer you needed, among other things, to:

[F]inally, so far as you can…consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price. (Oliver Wendell Holmes, Jr., “The Path of the Law” 10 Harvard Law Review 457 (1897). [I cannot give the specific page reference because the copy I found does not include the original pagination.])

Holmes followed this statement with the observation that we (presumably lawyers) don’t work enough with the theoretical underpinnings of law. And — not that I’m any Oliver Wendell Holmes, Jr. — I have to say that I tend to agree.

Holmes’s point, by the way, did not mean that we ignore other areas, such as historical development. He did not aim for some kind of pure theoretical study like those of Dworkin or Hart. What he meant was that to really be able to do our jobs as lawyers, we needed to have some understanding of public policy: the aim of the laws that made up our particular practices. (For this reason, he argued that the study of Roman law, which had been recommended to him when he was younger, was simply a mistake. Studying Roman law was a waste of time for someone practicing within the American jurisprudential system.)

With respect to the inspiration for this article — the specific questions asked on Twitter — I proposed analogizing from whatever situation might arise in a face-to-face, non-Internet-mediated support group. A suggestion was made that in that situation, the exchanges are oral and subject to difficulties in reproduction. In the Internet-mediated group, “it [is] written and preserved.” The belief was expressed that “It is harder to fight a written document.” And so the search is on for a rule that would allow the quashing of a subpoena for this written record (presumably a conversation preserved by private bulletin board software).

Holmes would see this as a mistake; a failure of jurisprudential theory.

There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. (Holmes, supra.)

Presumably, if something other than a churn had been broken, judgment could have gone to the plaintiff.

There is a public policy behind the refusal of courts to allow fishing expeditions into the happenings within therapeutic groups. In California, at least, “psychiatric material is generally undiscoverable prior to trial.” (People v. Gurule, 28 Cal.4th 557, 593 [123 Cal.Rptr.2d 345; 51 P.3d 224] (2002).) (At trial, different principles apply. (People v. Hammon, 15 Cal.4th 1117, 1128 [65 Cal.Rptr.2d 1; 938 P.2d 986], citing Davis v. Alaska, 415 U.S. 308 [94 S.Ct. 1105; 39 L.Ed.2d 347].))

In the interest of keeping this article from running to book-length, suffice it to say that there remains an argument over whether or not the discussions on an Internet-mediated support group constitute “psychiatric material.” Here, too, however, if I were the attorney, I would argue from a Holmesian point of view: Why is psychiatric material generally undiscoverable prior to trial? How should that principle be applied to the Internet-mediated support group setting?

A healthy understanding of, and reliance upon, the theory behind the law, rather than churning through a large number of databases looking for a case specific to such settings, where none may exist, goes a long way towards accomplishing the aims of the system.

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