A little over a week ago in this space, Professor Buchanan recounted his own personal encounter with the stretched-too-thin news media that must assign reporters to cover complex stories far beyond their regular beat or expertise. Reading the news of the discovery of what appears to be the Higgs boson last week, I thought, "well, at least a generalist reporter has a chance of understanding a complex law story."
The NY Times article was among the better ones I read, but it was pretty clearly written by someone who almost certainly does not understand the math that gave rise to the prediction of the Higgs boson. Here's the closest the story comes to explaining the theory that predicted the Higgs:
According to the Standard Model, which has ruled physics for 40 years, the Higgs boson is the only visible and particular manifestation of an invisible force field, a cosmic molasses that permeates space and imbues elementary particles that would otherwise be massless with mass. Particles wading through it would gain heft. Without this Higgs field, as it is known, or something like it, physicists say all the elementary forms of matter would zoom around at the speed of light, flowing through our hands like moonlight. There would be neither atoms nor life.Note the reliance on metaphor and simile in place of actual explanation. The Higgs boson is a "manifestation" of "a cosmic molasses." Other kinds of particles "wade" through this molasses. If they didn't, they would "flow" like "moonlight." That's about the best that can be done without the actual math, but it's pretty uninformative nonetheless. This sort of writing reminds me of a line from the late Richard Feynman, whose classic lectures on physics noted the way in which people who didn't really understand Einsteinian relativity would invoke it to make banal and unrelated points, like "everything's relative." Feynman observed that one didn't need advanced physics for this sort of claim; one could as easily rely on the fact that people look different when viewed from the front versus the back.
To be sure, some of the key ideas of modern physics can be explained passably without the math. We can vaguely comprehend and marvel at the notion of a constantly branching multiverse, even if we must take on faith the math that gives rise to it. But other ideas must remain mysterious without tensor calculus and the other mathematical tools needed to follow these things. Popularizations written by actual physicists have been very, well, popular, but one wonders how much of the underlying science is being conveyed without the math.
The situation in law should be much better. I have long maintained that there is nothing really distinctive about "thinking like a lawyer." Lawyers have two things that much of the general public lack: 1) Deep knowledge of specific bodies of law; and 2) The habit of thinking analytically. Specific knowledge in some particular area (the Commerce Clause, say) can be conveyed without providing the audience with a comprehensive background of every last detail. Meanwhile, even people who are not accustomed to thinking analytically can usually follow the steps of a logical argument. So one ought to see more useful reporting on law than on particle physics, and sometimes one does.
But often one does not. Why not? Part of the answer, I think, is that the adversary system exacerbates the tendency of journalists to think that being "balanced" means faithfully reporting two equally confident and diametrically opposite views. Much of the skill of being a lawyer is in stating a position that benefits your client or cause in a way that makes it sound like you are merely stating the law. A journalist who is not an expert in the field will have great difficulty distinguishing between open legal questions as to which there is a broad range of plausible answers and legal questions that are fairly one-sided. But there will usually be a range of interests that benefit from various answers to any question, and so it won't be that difficult to find someone who will say--in a confident-sounding way--that the law means X, even when disinterested observers would think it pretty clearly means not-X. Consequently, legal reporting looks a lot like policy reporting.
Just to be clear, policy is a very large component of law, especially for courts of last resort. But there are settled matters of background that are not just up for grabs. It's that background knowledge that is so difficult to convey to an over-worked, on-deadline, generalist reporter--and so it is that more often than one would think, lay reporting on the law looks like lay reporting on the Higgs boson.