Policy Building Blocks, And How We Talk About The Law

from the start-here dept

One of the fundamental difficulties in doing policy advocacy, including, and perhaps especially tech policy advocacy, is that we are not only speaking of technology, which can often seem inscrutable and scary to non-experts, but law, which itself is an intricate and often opaque system. This complicated nature of our legal system can present challenges, because policy involves an application of law to technology, and we can’t apply it well when we don’t understand how the law works. (It’s also hard to do well when we don’t understand how the technology works, either, but this post is about the law part so we’ll leave the issues with understanding technology aside for now.)

Even among lawyers, who should have some expertise in understanding the law, people can find themselves at different points along the learning curve in terms of understanding the intricacies and basic mechanics of our legal system. As explained before, law is often so complex that, even as practitioners, lawyers tend to become very specialized and may lose touch with some basic concepts if they do not often encounter them in the course of their careers.

Meanwhile it shouldn’t just be lawyers who understand law anyway. Certainly policymakers, charged with making the law, should have a solid understanding what they are working with. But regular people should too. After all, the point of a democracy is that the people get to decide what their laws should be (or at least be able to charge their representatives to make good ones on their behalf). And people can’t make good choices when they don’t understand how the choices they make fit into the system they are being made for.

Remember that none of these choices are being made in a vacuum; we do not find ourselves today with a completely blank canvas. Instead, we’ve all inherited a legal system that has chugged along for two centuries. We can, of course, choose to change any of it should we so require, but such an exercise would be best served by having a solid grasp on just what it is that we would be changing. Only with that insight can we be sure that any changes we might make would be needed, appropriate, and not themselves likely to cause even more problems than whatever we were trying to fix.

Because while our legal system is sometimes clunky and cumbersome, full of paradoxes, sometimes irreconcilable tensions, and lots of interdependencies, and is sometimes built upon perhaps naïve assumptions about what would best serve the nation… at the same time it’s really not a bad system and overall it has served us well. Even some of its more clunky bits tend to exist for good reasons, which have not necessarily been obviated by our changing nation and world. By and large, American legal constructs still continue to function as strong foundational pillars upon which to predicate a nation dedicated to the rule of law, liberty, and justice for all. So before we pull any parts of our legal system down, or think we need to reinvent the entire legal wheel, we should instead first understand the tools our system has already given us, because we may be able to solve a lot of the problems we might wish to solve just by using them better.

Thus we are left with a situation where effective advocacy depends on effective education, even more perhaps than effective argument. We can scream and yell at each other all day about what sorts of policy we might prefer, and that’s fine, but it can only be productive so long as we are all starting on the same page, with solid grasp of where the law is now and what we have to work with. Otherwise we will just be wasting time, because there’s no point arguing in support of a policy predicated on misapprehensions about how our legal world works: no matter how well-intentioned your proposed policy, you will still never be able to create the better world you were hoping to create with it because it simply won’t be something reality can accommodate.

For policy discourse to be able to produce that better world, we need to be equipped to feed the discourse developing it more effectively. So towards that end, look out here for pieces that don’t just talk about a specific legal case or piece of legislation, but instead take the time to focus on some of the broader legal concepts and constructs that any analysis of such cases or legislation should necessarily involve. Some pieces may be quite broad, to show general concepts or map out the landscape of a particular area of law, while some may zoom in on specific legal concepts and doctrines, particularly if a policy issue has arisen that pushes a certain topic to the fore. And while they will probably be written in whatever order the mood or opportunity strikes, and at whatever pace is practical, the goal is to ultimately paint as full a constellation of policy building blocks as possible. These are the puzzle pieces we put together to form any wider policy, and it is important for everyone trying to form that policy to be able to use that vocabulary accurately and well so that, rather than demanding the impossible, we can instead all collectively endeavor to make policy that can actually serve us well.

Filed Under: law, policy, Policy Building Blocks, technology, technology policy