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The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.
Baseball is the most contextual of sports. It is simply not possible to understand it from the rules of the game alone. Try taking someone who is uninitiated in baseball’s ways, a foreigner perhaps, to a baseball game, having explained its key elements, such as balls and strikes, and outs and innings. That person will not understand a thing. And be bored to tears besides. The rules are important, of course, but they do not begin to explain what’s happening in the game, what’s happening on the field. So much of baseball exists in the interstices of the rules, the context of the action.
In fact, the rules even sometimes seem wrong, or the game does, a mismatch of what’s required and what occurs. Think about a sacrifice bunt, for example. The batter makes an out—on purpose. Now, why would that be? To move a runner on first into scoring position. But why make an out? Why not try for a hit instead? And why is a runner on second base in scoring position? The next batter hits a hard line-drive single, and the runner on second does not score. Scoring position? Really? The next batter hits into a double play. The inning is over, and no runner ever scores. How to make sense of it all?
Baseball creates its own context. Baseball is one of only two major American sports that is not played against a clock (the other is tennis). Baseball has, instead, a time of its own. Baseball games do not go on forever, as many people claim. They are almost all of exactly the same duration: nine innings. And the duration of an inning is precise as well, and always identical: three outs for each side. To understand and appreciate baseball, you have to adjust to something different from the beat, beat, beat of chronological time. And the game ebbs and flows accordingly. Five hits and an error, leading to two runs, amid three strikeouts, will seem to extend for an eternity to your foreign guest. Three ground ball outs, or successive pitches, will seem very fast. But to the baseball aficionado, each is just a half an inning long.
The fabric of a baseball game is complex indeed. Uniquely in baseball, scoring is not done with the ball. There is no goal line to carry the ball across, no basket to shoot it through, and no goal to kick it into. Baseball always depends on at least two fields of action: where the ball is and where the runner is. Maybe the two will converge, as when a runner is thrown out at second base or at the plate trying to score. But there’s nothing in baseball that makes this even common, let alone the guiding rule. A gap double will score a speedy runner from first, as the ball is being returned to the infield. A ball hit out of the ballpark scores everyone aboard, with the ball never returning to the field of play at all. A wild pickoff throw to first will score a runner from third. Two areas of action to take account of, even focus on, before one can understand what’s happened or yet to come.
None of this lends itself to TV, which interferes with appreciation of a baseball game by depriving viewers of the advantages of seeing, and understanding, many of its most compelling features. Where are the fielders stationed? With a runner on, is the second baseman or shortstop going to cover second? And don’t forget those two fields of action, which usually must be shown seriatim rather than in real time. Baseball is not a sport made for TV.
But it is not TV that is killing baseball; it is SportsCenter or Baseball Tonight, or any other show that purports to summarize a baseball game in a few plays and a score. These shows provide no context at all. In fact, they intentionally omit it, assuming, ever more incorrectly, that their viewers already know it. Or, perhaps more accurately, that they don’t care. They want to know only who won and the minimum amount necessary to know how it happened. The very same foreigner who could not understand the game at the ballpark can easily understand SportsCenter’s account of it on TV—because SportsCenter tells us little or nothing besides the most immediate cause of the final score. What the pitcher’s day was like, or a batter’s, what a hit of inches or perfect positioning delivered, or how the count figured in the batter’s or the pitcher’s success or failure is nowhere to be found.
The law is like baseball. It, too, is entirely contextual. One can look for a legal rule stated in a case, and one may know the outcome. But these—the rule of decision and the result—are mostly insufficient to tell you what you need to know about the law or even that particular case. What does the case really mean? What’s its effect on the law? Is it groundbreaking, a significant modification, or really nothing more than a decision on a specific controversy? How do the facts of the case affect the outcome? Are the unique facts of the case more like this other one or that one? Would a different set of facts lead to a different result, or do the new facts, as we lawyers are wont to say, comprise a distinction without a difference?
It is impossible to know the law on a specific issue, let alone generally, based on a section of a case or on a single case or even on a group of cases. It is necessary to understand multiple elements of the case law generally to provide context. Even aside from the specific facts, the legal principle at issue is inevitably a part of a fabric of principles governing a particular area of the law, which is itself connected to the law generally. Each affects the other. We were told in law school that the law is a seamless web, and indeed it is.
The law, too, has a time of its own. On no particular chronological schedule, the law changes, evolves into something new, sometimes in a predictable fashion, sometimes not. Change can be incremental. The law protecting rights of homosexuals has developed at a slow but steady pace, for example. Or it can come with sudden justice. Think about America’s infamous “separate but equal” doctrine, which originated in the 1890s. Sixty years of decision making, which eroded but left standing that invidious principle, came crashing down in a single case, Brown v. Board of Education, in the 1950s. There are revolutionary decisions and Thermidors, gradual advances and steady declines.
The reason is that there are always multiple fields of action in legal decisions. There is existing law, for starters, and then the facts of the particular case. The facts do not stand alone, however; they reflect some element of society itself. Society changes and, with it, our sense of fairness and equity, not to mention possibility. And that in turn will affect perceptions and, eventually, the reality of the law itself. Amid this ever-moving dynamic, a decision is rendered, a snapshot in time that may itself change other developments or perhaps be swallowed by them.
This is the essence of our modern common law. Everything exists within a living system, an ever-changing interaction of facts and the law within the movement of society, which shapes the law as much as it is shaped by it. The meaning of any one decision can be understood only in terms of all the rest. To know one case, or even a body of case law, is never sufficient. Training in the law requires an appreciation of how the law works generally, what it’s done in the past, and what might come in the future.
Just as TV has negatively affected our appreciation of baseball, technology has in some cases served the law poorly. This would come as a surprise to many. Just as commentators tend to see TV as advantageous for our national pastime, spreading information about the game broadly, they have tended to see technology as aiding our comprehension of legal principles. Technology has, among other things, made legal research a speedy and efficient process. Services such as Lexis or Westlaw allow us to bring up a case or cases on a legal principle that might once have taken hours or even days to find through the clumsy process of reading digests and headnotes. This has lowered the cost of the process dramatically not just in the research process itself but in litigation more generally.
But this has not been without its price. To say that electronic research has negatively affected the soundness of our understanding of the law is a considerable understatement. Every senior lawyer has had the experience of an associate tried and true in the techniques of electronic research bringing a string of cases to the fore that appear to say what the law is. Because the context was never investigated, however, and is still missing, the legal principles are really not what they appear to be. In some instances, the legal principles may turn out to be the very opposite of what the black letter of the cases would seem to make them appear. Legal propositions without context are sometimes useless and, at worst, dead wrong. How even pertinent cases relate to others in a changing environment, heavily influenced by real principles of fairness in society’s grasp, is never a simple matter. Even in an earlier age, there was no certain protection against being misled by a case or two. But when one is reduced to rummaging for hours in the digests trying to understand what the best guidance is, it is much less likely that one will miss the forest for the trees, if only because there are more trees of different genera to consider and where they begin and end is more apparent.
For that reason, the older process facilitated learning more about what the law is. There are blind alleys and dead ends that must be pursued before their true (or, rather, false) character is known. One learns the law almost in spite of oneself. The meaning of one case takes on greater clarity amid others close or not so close to it. And even, or perhaps especially, the truly irrelevant has the effect of showing the alert researcher the myriad different ways in which legal principles work.
But electronic research has not killed off a good understanding of the law; it has only hampered it. Now there is an even greater threat of a related sort. Its most immediate impact can be seen in the history of this column. When Litigation began in the 1970s, there was a great need for a print resource calling attention to new cases in various areas of the law. Short of foraging in the digests, there were not many ways to stay current on the most important recent developments. This remained true even after the advent of electronic research. But now? Subscribe to any legal reporting service, or even utilize the publicly available resources of the law-related sections of Yahoo or Google, and you will be flooded with reports of recent cases all over the fabric of the law. No longer of much interest at all is an advance sheet reporting six months after the fact on a new case. It is quite literally yesterday’s news.
What’s striking, however, is how this torrent of reports has sometimes impoverished our understanding rather than improved it. True, we might more easily spot a case that seems to be particularly pertinent to a matter we are working on. But for every lucky strike we experience of this kind, there are a hundred, maybe a thousand, reports that are of no direct use whatsoever. And what’s the effect? What you see on your computer is a headline, a result, a one-sentence description of what has been decided. Nor is it the most accurate of descriptions. It is one purposely dramatized to catch your attention, alert you to some new and critical development you must know about immediately. Infrequently will you follow up. There are too many cases, too many developments, too much stuff. Rather, you will move on from the SportsCenter-like account with an impression of what happened, or is happening, rather than what actually occurred, what the case means, or whether the law has changed at all.
A single humdrum example nicely demonstrates the problem. Recently, several news services reported the startling news that “a Facebook ‘Like’ [Is] Entitled to First Amendment Protection.” This sounded like some major development in the law with respect to the treatment of social media, an ever-growing force in our society and on cases generally. The headline told us the Fourth Circuit had done something remarkable, maybe treating social media as something distinctive subject to special rules. Was there now some new protection for this emerging force?
Certainly, you would be forgiven for thinking so. In fact, the case at issue, a decision by the Fourth Circuit in Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013), is a snorer. It does little more than understand a Facebook “like” as speech, as clearly it is. A “like” is just a symbolic shorthand for the statement “I like this” or “I support this point of view.” There is nothing really serious in this. A thumbs-up electronically is no different from one in person. All kinds of physical activity of one sort or another have been found to be protected speech. It is difficult to see how an electronic representation of physical conduct should be treated differently.
There is no direct fault, of course, to be found in the headline, which accurately represents the subject matter of a part of the case. But the impression left by the headline and the reality of the case are very different indeed. The context is missing, and we may come away with an impression very different from the reality. An interested lawyer will follow up, looking behind any provocative headline, and the impression of something novel or different will quickly and quietly dissipate. But it is impossible to ignore the cumulative impact that the barrage of case headlines will have. The more senior lawyers are removed from doing research and young lawyers learn the law through search words, the greater the prospect of SportsCenter-like misunderstandings of that incredibly contextual fabric of the law. And the quality of our lawyering will remain at risk.