Dealing with "Is X (il)legal" questions

Question

I have grown weary of questions of the form, "Is X legal?", when the question offers no hint as to why X would be illegal, or even why one would expect that there is any law dealing with X. To paraphrase some recent examples:

• Is off-shore banking always illegal?
• Is it legal to not earn a high school diploma?
• Is it legal for a print shop to set their prices based on the content they're printing?

In these cases, even when prompted, the asker did not offer any context or color to make the question amenable to a good answer.

So far these questions have often been closed as "too broad" or "unclear what you're asking." Which are both true. Except that IXL questions (as I propose we call them) are especially pernicious cases of these problems. Frankly, any four-year-old could come up with a hundred such low-quality, broad, IXL questions before naptime.

In many cases it is possible to write a good question around an IXL query. It is also possible to write a good answer to a bad IXL question, as suggested in the answers to How should we answer "Is this legal?": I applaud users with such patience and dedication. And maybe I'm the only one who finds these to be problematic. (If you don't mind IXLs please convey that fact by downvoting this question!)

If you think these merit a canonical response or special close reason, please write one in an answer.

Answer 1

“Is X legal?” is profoundly different from “Are there any examples of X being illegal?”

The answer no to the latter does not imply yes to the former.

Statutes and cases can be cited to prove something is illegal. But, in the U.S., the default condition is for things, in general, to be legal; unless there is a law against it. So we do not have statutes authorizing behaviors as legal. We only have laws and regulations which make them illegal.

Although, some amendments empower the government with certain authority, much of the language of constitutions is generally crafted in a way to prevent the government from passing certain laws that make certain behaviors illegal (e.g., the Bill of Rights, for example).

It is impossible to prove a negative.

As a matter of practice and logic, it is impossible to ever make a definitive, affirmative claim that X is legal (equivalent to X is not illegal — hence proving a negative). By contrast, however, one can, definitively conclude X is illegal. In the case of the former, the best one can ever do is research then report, if true, a lack of any (known) successful prosecutions or civil claims made against X.

That, however, this is a far cry from claiming X is legal. In such a case, X might, in fact, be highly illegal. It depends on the facts of the case. The jurisdiction. The statutes and regulations in effect. (Many regulations are often unknown to the general public and sometimes not available without a FOIA request.) How new any anti-X regulations are or might be. How common X is. (The last two combine into the frequency of opportunities for prosecuting X). The aggressiveness of the prosecutors and/or regulators with those opportunities. These can be affected by public sentiment, politics, corporate and lobbyist influence. And on and on. And on.

But what about cases that have been successfully prosecuted, then overturned on appeal and / or on constitutional grounds?

These are non-determinative. Because they are fact dependent. And subject to future exception. For example, one of the most basic fundamental rights guaranteed by the U.S. Constitution — the First Amendement right to freedom of speech — stood unqualified for over one century (from 1791 to 1919) before it was limited by Schenck v. United States.

If illegal, why would X have not yet yielded any examples of successful prosecution or claim?

Saul Goodman says:

The possibilities are limitless!

Answer 2

I don't think that "too broad" or "unclear" are appropriate dispositions of such questions. The offshore banking question is the only one of those that I find a bit unclear (what is "offshore banking"? does it refer to having an account in a country other than the one you reside in (my default interpretation); does it refer specifically to patronizing a bank where most depositors are not nationals of the country where the bank is?). Otherwise, each of the questions has a correct answer (no, yes, yes – if there is disagreement on that front then there would seem to be a substantive question). So using one of the existing reasons would be, well, conceptually wrong, in implying a flaw that is not applicable. I would say that the problem is that such questions start from the faulty premise that what is legal vs. illegal is completely arbitrary (not just somewhat arbitrary). I do think there should be a category along the lines of "no dumb questions".

I hope that common sense would tell one the answers to the latter two questions, but I don't think most people have a firm enough grasp of concepts of rights, government and law that they would have a reasoned basis for guessing one way or the other. In fact, I would not be surprised if it turned out that there is a legal basis for a discrimination suit, if for example a print shop charged more to print Presbyterian hymns.

As I think about it, one can give diametrically opposing, perfectly reasonable rhetorical responses to the print shop question: "Why would you think it would be legal?" and "Why would you think it wouldn't be legal?". The former question would seem perfectly valid to the person who wrote the second disjunct in this characterization of "illegal".

Okay: so, what this place probably needs is an elementary tutorial on non-paywall research tools.

At https://law.stackexchange.com/help/on-topic it says "Please look around to see if your question has been asked before"; I would recommend modifying that to include ", or try to use one of these sources to answer your question", so that people might find that excellent thread.

Answer 3

A lay person has no idea what is legal or not and no idea where to even start. I am currently studying law and it has been a process of progressively peeling away layers of lore (especially when studying torts).

IXL questions are a good thing. Hopefully experienced users will ask them well (e.g. by something coming out of Request for comment: How to write a Good™ Law SE question). But even IXL questions by people with no background or experience in the law help by building up a framework; when we answer questions from lay people we build up a valuable public resource. If you were writing a law textbook, where would you start? With IXL questions, you have a todo list.

Another thing about IXL questions is that lay people generally cannot ask questions about a specific area of the law. They ask about areas of life. They don't ask specifically about criminal liability, tort liability or contractual liability. They ask about what they want to do/what they see happening. It is then the appropriate role of the answer to set out the areas of the law that are relevant and discuss each.

Vague questions and vague answers are no good. But the thing about answering a legal question, whether in a lawyer's office or on Law.SE, is the need for a dialogue whereby you iteratively clarify the poster's needs.

IXL questions are not bad. Vague questions and answers are bad. IXL questions are not bad questions. The only bad IXL questions are the questions where the asker refuses to provide clarification and insists on asking an impossibly broad question; that's just a vague question. The fact that it's IXL doesn't make it worse.

Answer 4

The main reason I want to use this site is to learn what is legal. Laws are hard to find and hard to read, and most people live with a dull rumble of confused dread about that. People want to know straight up whether they will be subjected to imprisonment or financial ruin if they do certain things. This is the height of reasonability.

I agree that many IXL questions are frustratingly vague. But part of writing good answers is helping people refine their questions. That requires a willingness to discuss, an to do some speculative extrapolation. This is as true of the Law StackExchange as it is of MathOverflow or StackOverflow or any of the others.

If the concern is that n00bs asking "HELP MY EX OWES ME MONEY!!1" distracts from august juridical scholarship, the Law StackExchange might need to be split the way MathOverflow is from Math. A sufficiently active legal StackExchange would probably want to separate Cass Sunstein from Saul Goodman. For now, however, I don't see a problem with mixing them.