"By the present communiqué ...": The Disconnect Between Laypeople and the Law

Welp, that ought to do it!

This blog has undertaken to explore the public's tenuous grasp of copyright before. But the recent resurgence of the above Facebook hoax has caused me to wonder more broadly about why there seems to be such a disconnect between laypeople and the law. (If you are not sure what's wrong with the above picture, I would invite you to do a search and read the far more sweeping tear-downs of the above nonsense).

Sure, I could sit back and ridicule the people who posted this thing, but the above hoax has affected a large enough swath of my friends list (to include TWO recent graduates of my law school [exasperated sigh]), so as to legitimize it as a threat to otherwise reasonable people. In their defense, most of them, after myself or one of their friends informed them -- as politely as possible -- that they were an idiot, responded with something like "lol, you're probably right ... but it couldn't hurt."

Yet, ultimately, they did not take it down. This implies that some small part of them believes that this arcane, jarbled mix of gibberish and sloppy citations to inapplicable foreign law and irrelevant domestic law that they unilaterally microblogged to the world might somehow protect them from the mysterious terms and conditions that they clicked agree to years ago and never read.

Now, this issue may implicate a host of others, such as the very real and kinda scary privacy and ownership concerns arising in a digital world, or the infuriating tendency of people to re-post bullshit without taking a second to Google the damn thing (when they are already on the internet)!  But more to my point, it raises real questions about the public-at-large's staggering rate of legal illiteracy.  To many, the above "communiqué" (as a previous iteration of the hoax called itself) is how they think the law works: you can just say some magic words and bask in legal sanctuary.

Now, maybe you're saying "Hey, legal illiteracy is good for lawyers, right? The less they know, the more they need you!" Well, not always. To initiate a legal relationship (i.e., hire a lawyer) the client must first have the legal wherewithal to realize he has a legal issue. This may be clear when the client gets arrested or receives a summons. And the billboard lawyers and the media have done a pretty good job of informing people to call an 800 number if they should slip and fall or get into a serious accident.

But in the modern world, the law touches everything. If you're a writer, a photographer, or an artist of any kind, you need to be educated about copyright. If you're an inventor, patent law. If you're a business person, large or small, you need to have some understanding of corporate structures and governance, contract law, local zoning ordinances, licensing requirements, insurance, employment law, ERISA ... the list goes on.  And everyone needs to understand tax.

But, by and large, people not trained as lawyers or who do not work with lawyers frequently fail to conceptualize a lot of these issues as legal ones for which they could or should seek a lawyer's help. And thus, they don't, or at least they don't until they do get arrested or receive a summons and frantically call a lawyer well after the opportunity to painlessly rectify the situation has passed.

Finally, the other part of the problem is the law itself. The continuing expanse of the law into every aspect of our lives is, for better or worse, unavoidable. But the law doesn't expand neatly or comprehensively, it expands amorphously like an amoeba grotesquely enveloping new particles of jurisdiction with its pseudopods. In so doing, it synthesizes it with the glob of existing law, much of which is based in centuries-old common law and other legal traditions.

In the end, you end up with a bunch of rules that come off as overly formalistic (disclaimer of warranties and service of process rules come to mind) that leave no room for common sense and that empower the legally-literate to say the right thing or file the right form to defeat on technicality an otherwise righteous opponent's interests. Not only is this inherently unfair, but it lends itself to the expectation that there are always some loophole that a crafty lawyer can exploit -- which is another toxic client mindset. Google "sovereign citizens" (the likely perpetrators of the above hoax) and you can learn about whole groups of people who believe that overly formalistic nonsense, like the existence of gold fringe on an american flag, can be invoked to exempt oneself from all manner of legal requirements.

Over recent years, however, many consumer-protection laws have been enacted to, to some extent, relax the harsher operations of law against non-business entities (i.e., regular people). And from time to time, legislators even heed advise from legal reformers and make the law more intuitive and fair. Thus, when someone tells you that you can "get out of jail free" by using some arcane legalese, and you are tempted to try -- please call a lawyer first. But barring that, try good old snopes.com.