Legal Commentary

Despite the digression on legal residencies, the main point of my original post was to ask a different set of questions. I was interested by the idea that even within the world of the black-letter, lawyers who don't know certain things about a field are a menace to their clients. I'm curious what those things are on a field-by-field basis, and how long it takes to teach them. In particular, how do we help them avoid wandering onto thin ice?

Here's an example from my own teaching. Section 230 is the single most important thing I teach in my Internet Law class; it's a central topic for any worthwhile course in the field. The courts have read it broadly--and remarkably uniformly--as immunizing online intermediaries from liability for harmful content supplied by users. Thanks to Section 230, your ISP isn't liable if you use its facilities to send out defamatory emails. Web forum operators aren't liable for privacy-invading messages posted there; Craigslist isn't liable if its users post ads looking for white tenants only.

The basic parameters of Section 230 immunity are pretty well settled by now. It's true that there's some interesting litigation around the margin, but the core protection is about as clear as anything ever gets in law. And yet, plaintiff after plaintiff files a lawsuit that's obviously preempted by Section 230. As Eric Goldman predicted, it's getting to the point where attorneys filing such suits are flirting with Rule 11 sanctions. And yet the lawsuits keep on coming.

I've talked to a few attorneys without an Internet law background about about Section 230. Their attitude towards it could best be described as "disbelief." A categorical immunity this broad and absolute was simply outside their past experience. No matter what I said or how many citations I gave them, they really didn't think, in their heart of hearts, that it could possibly be the law. Section 230 is a spring-gun doctrine, highly dangerous to those who trespass in the field of Internet law.

Thus, one facet of my larger question is what to do about spring-gun doctrines throughout the law. Dedicated classes in a subject can spend major class time on them--often time disproportionate to the policy issues they raise or the complexity of the law. That presupposes, however, that students are taking a class in the subject. Or, we can point them out from a safe vantage point without getting into the details. Don't even think of going in that cave without a map. Again, though, the scattered nature of legal education means that no one graduates having received all the warnings they probably need to hear. The true skill that lawyers need is to recognize the warning signs of thin ice in a doctrinal area they don't already know. I have no good idea how to teach that one well.