Lawyers Kill

According to Inside Higher Ed, a new report about the Virginia Tech shooter puts the blame on college lawyers:

"Throughout our meetings and in every breakout session, we heard differing interpretations and confusion about legal restrictions on the ability to share information about a person who may be a threat to self or to others," states the Report to the President on Issues Raised by the Virginia Tech Tragedy, released Wednesday and compiled by the U.S. Departments of Education, Health and Human Services and Justice. Fears of violating state privacy laws, statutes designed to prevent discrimination of people with mental illness -- and, of course, the federal Health Insurance Portability Accountability Act (HIPAA) Privacy Rule and the Family Educational Rights and Privacy Act (FERPA) -- can serve to "chill legitimate information sharing," the report reads.

"It was almost universally observed that these fears and misunderstandings likely limit the transfer of information in more significant ways than is required by law," the report says.

OK, I'm reading a little bit into that, because I have long-standing complaints with a number of academic practices that I think are based in a much-too-cautious approach to various state and federal laws. I tend to blame lawyers for that, mostly because the meetings explaining those policies inevitably involve lawyers who refuse to give any definitive answers to questions, and that drives me right up the goddamn wall.

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There is a simple reason that lawyers seldom give clear, simple or definitive answers to questions about topics: for those questions, there may be no clear, simple and definitive answers. For most rules of law where there is at least one court case that hinged on how to interpret the rule, there is also another court case that reached *almost* the opposite conclusion -- instances where the distinctions between the cases are important to the judicial system.

Most lawyers are not trained or often called upon to distill complicated rules for classes of situations into clear and simple rules. Even when a lawyer can do that, he or she may prefer to answer questions about specific cases rather than generalities: a distinction that may appear irrelevant to a lay person may actually be relevant. I suspect all practicing scientists and engineers have seen or know of analogous sets of rules in their own fields. Since law deals with a deeply fluid and complex area (almost all of human endeavor), it has a correspondingly large set of complexities.

By Michael Poole (not verified) on 14 Jun 2007 #permalink

I think that the whole notion of confidentiality has been taken to a paranoid extreme in many cases. A lot of damage is done in its name in a variety of arenas.

This is not to say that I'm opposed to confidentiality, and indeed there are cases where names get dragged through the mud far too easily. But in the name of avoiding lawsuits, people sometimes don't get information that would help them, or would help the community tremendously.

-Rob

There is a simple reason that lawyers seldom give clear, simple or definitive answers to questions about topics: for those questions, there may be no clear, simple and definitive answers.

On an intellectual level, I understand that.

It doesn't make it any less maddening, though, when somebody in a meeting asks a yes-or-no question, and gets "That raises some really interesting issues..." as a response.

To me the report sounds a lot like spreading the blame. And who better to spread the blame to than lawyers?

IANAL [I Am Not A Lawyer]. Yet I'd like to make a comment on meta-Law and meta-meta-Law.

In my other life I am a part-time paralegal specializing in Appellate and Supreme Court briefs and writs.

What we call "The Law" is a chaotic attractor in the space of all possible laws. I keep meaning to explain this in copiously footnoted dense theoretical prose of the Law Review variety.

Math and Physics rarely, but sometimes, sneak into such theoretical legal publications, and sometimes indirectly affect the Supreme Court. Although, anecdotally, the current Supremes read Law Review articles FAR less often that was the case some decades ago.

The Superior - Appeals - Supreme - Legislature hierarchy, and the precedent-based logic, make the laws at a given time evolve sensitively to initial conditions.

The Constitution and the Declaration of Independence are written in plain English. BUT...

Isaac Asimov wrote about complicated issues of Science, Math, History, and Literature in Plain English -- intentionally, and superbly. That doesn't make the underlying Science, Math, History, and Literature simple.

In American Law, there is a 3-level hierarchy of interpreting "plain English."

(1) If neither part disputes what the language means, then it is taken to mean what they agree it means, on the surface.

(2) If the dispute what the language means (often at the Appellate level) then the analysis proceeds by related laws, by court precedents in that state, by precedents in other states, and by Federal precedents.

(3) If that still doesn't decide things, then (usually at the State Supreme Court or US Supreme Court level) then one goes to INTENT of the framers of the language, as established by transcripts of legislative debates, analyses by other authorities, even memoranda of legislative aides and the like.

TINLA (This Is Not Legal Advice). Again, I Am Not A Lawyer, and it is a Felony in my state to practice law without a license. So this is only my informed opinion as someone who has, over 15+ years, been a paralegal from time to time researching, writing, serving, and even arguing (in pro per) Superior Court, Appellate Court, and State Supreme Court motions and Writs.

The Constitution and the Declaration of Independence are written in plain English. Yet that
does not make the meaning simple. English has changed in 220+ years. The culture has changed. What is "free speech" in the context of the web, Google Street View, and Terahertz waves that allow law enforcement to literally look through walls, and satellite photos of people and cars on the ground, and so forth. Ben Franklin could not have predicted these. And the laws of other countries have changed on, for instance, death penalties, and the UN exists and the EU, and there is an influence of foreign laws on US laws -- that influence itself debated.

Why do lawyers give apparently evasive answers? Sometimes they are being evasive. Sometimes they are talking in code. Even documents in Plain English can simultaneously be "written in code." For geniuses such as Franklin, Madison, Hamilton, Jefferson, and John Jay, this is often important.

Also, drafts change. For instance, earlier drafts read: "Life, Liberty, and Property."

Then the phrase "pursuit of happiness" was used to replace "property", probably as a compromise between delegates representing states with differing percentages of property-owners and
non-property-owners, or the like.

Does anyone strongly agree or disagree?

There is much debate as to what "pursuit of happiness" really means. But is seems clear to me that we can pursue happiness better if we are not being murdered.

A lot of these things were debated first in other
venues.

So the lawyers found it hard to agree on creative ways to push the envelope for transmitting private personal information without violating privacy laws. Is that surprising? Is it a bad thing? Why do we want to grease the legal system to make these sorts of decisions easy? Why should we relax privacy laws that inure to the benefit of millions daily just to make it easier to engage in the witch-hunt of the moment?

What really drives *me* up the wall is when nonlawyers expect glib answers to complicated questions they don't recognize as such, and then blame the lawyers because they don't give the desired answer.

Ask a meteorologist exactly what the weather is going to be in in six days. Ask a poli sci prof whether a bill, introduced to committee yesterday, will be enacted by September. Ask the physicist 'yes or no' whether the cat is alive or dead.

"Liability" has become a magic word. The incanter--and usually it's not a lawyer--hopes to cast his listeners under a spell, the effect of which is to stop people from thinking. Recently, the word "security" has also become the same sort of magic word.

Maybe the real issue is less the lawyers and more the people that sue the crap out of each other at the drop of a hat.

I am a lawyer. I also used to be a scientist, which is irrelevant to what I will say, but might get me more cred on this thread than otherwise. Without purporting to give legal advice or establish an attorney-client relationship:

Chad is right. The education business attracts a lot of bad lawyering, especially zero-tolerance policies and bizarro-world notions of due process. Most educational institutions are nonprofits. Because they have no metric corresponding to profit, they tend to be unwilling to take sensible legal risks. Instead, they seem to have a zero-risk mentality--which is nonsense. The proper transactional lawyers' approach: "The risk is small, and here is how to reduce it at sensible cost." But not in education, where the lawyers seem to cover their butts: "Eeeek, there is risk." And, like thm says, the clients run screaming.

Believe it or not, there are some fields of law where there is little uncertainty, and little risk if you structure matters carefully. Parts of the Uniform Commercial Code are extremely formalistic, and give bright-line results. But most of the law is not this way, I'm afraid.