Legal Commentary

The Lesson of 585 Comments

By Orin Kerr

The comment thread to Monday?s post, The Ultimate Legal Blog Comment, is now at 585 comments ? many by ?Mick? himself, who left the original comment on Jonathan Turley?s blog. And it?s still going: It was at 583 comments when I started writing this post, and I had to update the number when I was finished.

I think there?s a lesson about legal education in that comment thread. One major skill taught be legal training is how to put sources of legal meaning in context. To the new law student ? or, as pertains here, to the blog commenter who is new to legal analysis ? all sources of meaning seem equally valid. They?re all ?law.? Dicta from a footnote in an 1912 state appellate court decision has the same force as yesterday?s U.S. Supreme Court majority holding. After all, they?re both there in black and white. 

One of the skills taught by rigorous legal training is how to put those sources in context. That training often emphasizes the role of different sources of law in ascertaining meaning ? the role of text, of analogy, of precedents, of higher court versus lower courts ? and how to evaluate the significance of those sources for or against legal positions. To be clear, I don?t mean that there is some magic to formal training like attending law school. A person could teach himself the same thing on his own. But in general, the more you know about law, the more attuned you are to the role of context in evaluating the significance of particular legal rouces.

That doesn?t mean that legal training always leads to agreement as to a ?correct? answer. Obviously it does not. Sometimes the sources of law are roughly balanced, and in other cases different people will value different sources of law more or less than others. But recognizing the context of legal sources is often hugely important in making progress towards recognizing that some legal arguments are weak and some are strong. 

That matters here because it?s the absence of context-awareness that can produce endless Internet debates like the 585-comment Ultimate Legal Comment thread. Without context, all evidence becomes absolute. A snippet becomes undeniable truth ? truth that surely everyone should be able to see. That makes it impossible to change any minds, and leads to hundreds upon hundreds of comments.

UPDATE: This morning?s comment from Mick about the debate in the comment threads here is another classic:

NONE of you have proven me wrong. Shame on you in the supposed intelligista for allowing the Usurpation, and destruction of the USC. The truth sets me free, and the viciousness of the Alinskyan attacks against my character, intelligence, etc, is telling. It is desperation. Dual Citizenship at birth makes Obama INELIGIBLE as a NON Natural Born Citizen. All you supposed lawyers that think a pic on a website is proof of ANYTHING should be ashamed, but regardless, his FOREIGN FATHER alone makes him INELIGIBLE. 

Again, awesome. Or shall I say, ?Fraud!!!?

Full post as published by The Volokh Conspiracy on September 02, 2010 (boomark / email).