The legal profession can -- and should-- help to instruct the general public about this country's all-important institutions.dctim1/Flickr
Multiple forces in modern life work to detract from Americans' ability to understand, navigate, and re-shape the country's civil institutions. These forces include, to name a few names: declining emphasis on social studies in our schools, the shrinking capabilities of news organizations, and the prominence given to the brashest of headlines. A post-industrial society flooded with more "information," complexity, and interdependence than ever before," and fewer genuine aids for making sense of it all, make for a deadly combination.
Judges and lawyers have traditionally not viewed themselves as having a central role in public education about law and government. We thought that other elements of society had ownership of that task. But the diminished capacity of some of these elements (especially the incredible shrinking press), suggest that the profession must be more assertive on this front.
Courts and judges in particular are well suited for making a difference in civic education, standing as they do in the public mind as reasonably honest brokers of disputes and information. For that purpose, technology is our friend.
The role of cameras in American courtrooms is an easy case in point. The nation's judiciary banned cameras in the 1950's after a series of dreadful experiences in which court proceedings were disrupted by the equipment of the era and only the most dramatic trial moments made it to air. A plausible threat to due process with little concomitant reward.
The opportunities half a century later are quite different. Web broadcasts managed by the courts themselves are relatively cheap, and the equipment is undisruptive. Web audiences are informed and engaged. Webcasts can offer something akin to gavel-to-gavel coverage and thus place less highlight on the salacious. These techniques can even broaden the contribution by Old Media: the Indiana courts recently authorized trial court broadcasts delivered through the web pages of newspapers.
And when courts do act on matters of broad public interest, it shouldn't be above our pay grade to take into account how the public will receive the message. Judges used to declare, "The opinion speaks for itself." It frequently didn't do that very well. When I write opinions about matters of high visibility, I work pretty hard on the opening hundred words.
And we should give the public and the press a fighting chance to absorb what we write. For example, when the Ninth Circuit Court of Appeals decided in 2003 that the recall election of California Governor Gray Davis could go forward, the court's decision and opinions were ready in early evening. The Chief Judge, concluding that a few hours delay would not affect the course of events, announced that there would not be a decision that night but that all concerned could expect a hand-down first thing the next morning. This gave the press and the voters a full, fresh day to absorb what the court had said. By contrast, the U.S. Supreme Court issued its dispositive decision in the 2000 presidential contest around 10:30 p.m. The nation thus first heard about the ruling from reporters standing amidst klieg lights on the Court's steps, dividing up the reams of paper and simultaneously digesting and explaining as they read the Court's decision on the fly.