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Bloggers Impacting the World of Litigation
DaveKleiman writes "Will bloggers change the world of Supreme Court litigation by inspecting published opinions? Rachel C. Lee has an interesting take on the question in the Stanford Law Review, Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy In the Internet Era (PDF). She begins the review with: 'Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty — they are already capable of having a substantial impact on Supreme Court litigation.' The review hits on many key points both for and against the use of blogging, but ultimately concludes that members of the Court and their staff will have to refrain from reading any blog post relating to a pending case, no matter who it is written by. It's even possible we'll get carefully drafted rules preventing blogging by attorneys." It's going to be tough to make any such prohibition work. After all, Groklaw's PJ is not an attorney.
.. the law lobby will try to make it illegal for the "proles" to discuss case law.
There is a war going on for your mind.
I haven't read all of the 39 pages of this report but from what I gather, I don't see why this should be any different than scientific blogging (or, in pre-internet terms, armchair science).
... like bird behavior. And it's a significant contribution to that field. Maybe he realizes what he's discovered and maybe he doesn't know the intricacies of bird behavior so he blogs about it.
Example: I read Bryan William Jones' blog. It sometimes has scientific topics although rarely anything new. Let's say Dr. Jones makes some important discovery in a field he is not an expert in
Is this a peer reviewed published piece of research? No. Is it important to the field? It might be. Should he get credit? Yes. Should bird behaviorists be required to read every blog on the internet looking for a breakthrough? No. Could it go unnoticed? Yes. Will this happen often? Highly unlikely. Will Dr. Jones rare footage of the endangered African Upside-down tufted titmouse's in flight mating dance be a hit to the general public who like little birdies? Probably.
I see lawyering in a similar light. You expect the laywers and judges involved in a case to be completely on top of everything and knowledgable about everything (try to suppress laughter, please). But of course someone like Groklaw's PJ could bust out a piece of work putting more of the puzzle together than any of the inept dinosaurs running the show. Similar questions and answers may follow this scenario as in the case of the blogging scientist. Most importantly, that this position may be popular with the public but it's not a part of the case unless someone involved takes note and makes it so and puts it into the spotlight (or Bird Behavioral Journal in the former example).
That said, there is one serious flaw in this analogy. Science is usually correct or wrong. And usually easily decided (upon reflection, perhaps I should have used something more hotly contested like quantum theory instead of a bird dance). Law, as we all know here, is not only many shades of gray but also something that many people on the internet get emotional about (which is a good thing) and think they are experts in (which is a bad thing). I have not read the legal minutiae of my state or even country. I know the popular things and I extrapolate on them--almost always erroneously.
In short, I would opine that it would be a violation of free speech to outlaw it and dangerous if not stupid to make it legally important. There is a reason for the BAR exam. If you have not passed that, you probably just want to be a citizen on a soapbox instead of a legal target.
Blogging is by and large a disposable medium that can be morphed into important things by the appropriate people. It is satisfying to express one's ideas like I am doing right now. Leave it that way.
My work here is dung.
While this isn't the case for all blogs, there are a vast amount that aren't tied into sponsors, or wheels inside wheels that would prevent them for really exposing activities as such. There are too many cautious media moguls out there that don't want to hurt their base that news because a glossed over sort of event. People are afraid to try and expose something and be wrong, ie Dan Rather and the Bush Vietnam debacle. Yes its good to verify information, but at the same time sometimes one needs to have a little guts when trying to expose the truth.
The musings of just another geek and his junk.
This is absurd. Supreme Court Justices are allowed to do their own research. Traditionally, this has included everything from cases (even cases from foreign jurisdictions) to law review articles. I don't think that anyone can pretend that law review articles have never taken sides in a Supreme Court controversy.
Why should blogs be treated any differently? I see no reason. I suspect this author wants to take active steps to maintain the influence of law reviews. It's not terribly surprising. The influence of law reviews has been on the decline for *years*.
Even the most prideful members of /. go about saying "IANAL" almost out of sheer reflex any more. I'm tired of hearing it.
Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.
Persuasiveness is much more important than having good evidence in both cases. Hardly something that makes one into a socially unquestionable demigod.
Do what thou wilt shall be the whole of the Law
I'm not sure that the use of blogs is different in anything but(possibly) degree from what has happened since pretty much the beginning of law.
It is (barring the replacement of statutes with strong-AI lawbots) impossible to write law that is self interpreting. Interpretation is inevitable. And, given the way humans are wired, culture and people outside the case writing about law, legal theory, and the case itself, will inevitably influence that interpretation.
Blogs are different than law journals, in that they aren't subject to peer review or anything(though, a lot of law blogs are published under real names, and putting your reputation on the line has an effect); but they are rather similar to other sources of input on lawyers and judges(half remembered newspaper clips, life experiences, conversations with colleagues and friends, and so forth). Blogs widen the circle of informal discourse a bit, just as email has a broader reach than snail mail; but it doesn't strike me as a genuinely novel development.
For that reason(and because I'm leery of interference with speech in general) the notion of restricting blogs seems both absurd and dangerous. Obviously, being on the internet doesn't free you from the usual rules of confidentiality, good taste, and so forth; but it is no more dangerous than other venues of informal discourse, which aren't restricted.
The idea that "judges must not read blogs" is absurdly extreme. We don't forbid judges from reading newspapers; why are bloggers suddenly called out for special mistreatment? It's true that we don't let juries look at stuff because they're not familiar with the details of what is or is not permissible evidence, but judges do have such training.
In fact, the article opens with Kennedy v. Louisiana, where blogging was a tremendous help. In this case, the Supreme Court's ruling was based on wrong information, and the bloggers pointed this mistake out. Kudos to the authors for being brave enough to point to this as an example. In any case, it shows that bloggers can have a very positive effect on court outcomes, by calling attention to critical mistakes in the court's information.
I want to see people more involved in political discourse. If they know that their discussions can't possibly have any effect, then they're less likely to have such discourse. Heck, I think that's why we have such low voter turnout... too many people think "my vote can't make any difference".
I do agree that there's a risk of hearing more of one side than another, but the direct presentations to judges along with research that the judges themselves do should help counter that. The other extremes seem worse than the problem they're trying to cure.
- David A. Wheeler (see my Secure Programming HOWTO)
Why should a blog be treated any differently than an amicus curiae brief? People are entitled to have and express their opinions, and judges have the right to not read them. Personally, I think crowdsourcing legal arguments would make for better law; there would be fewer missed points in arguments, and therefore fewer bad precedents. Finally, I don't see how telling bloggers to STFU could be viewed as anything but a violation of the First Amendment. What may be valid is the blocking of jurors' access to blogs, as jurors aren't allowed access to any evidence not approved by the judge.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
Comment removed based on user account deletion
In the course of their tenure, they have to carefully shield themselves from the opinion currents (socially, they will remain mostly in their family circles, and avoid big social venues), as they their job requires them to strictly adhere to the Constitution and the jurisprudence (where relevant). As a matter of course, they will avoid reading newspapers articles relating to "their" cases, and blogs naturally fall in this category.
Whatever discussions we had about his work have been kept generic and mundane, and with the utmost care not to reveal the inner legal workings of the cases; in short, nothing more than what is available to court observers.
The problem is that the judge is then introducing "testimony" (for lack of a better word) into the case. And if that testimony helps one side, the other side does not have the chance to present information or analysis that is counter to the testimony.
Furthmore, deep pockets could easily outweigh good analysis. Farming blog posts in support of your side of a case should have no bearing on the outcome of an appeal; unfortunately, that may become a real issue. It's simply the court of public opinion, except digital -- and quite possibly, easier to manipulate than general public opinion.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
For once, the Libertarian Party truly had the Democratic and Republican parties over a barrel when they failed to file their candidates before the deadline in Texas. Neither Obama nor McCain should have been on the official ballots in Texas because they failed to meet the deadline for filing. With quite literally no legal explanation, the motion was denied. No reason for the denial was offered. It was just "no."
Had it been an independent or a third party, we know what the outcome would have been and there would have been explanations citing rule of law and procedure. It would be interesting to see if this judge had ruled on similar cases concerning ballots and the like and to have their outcomes compared. This is something a great blogger might be able to pull off.
It just wouldn't be lucrative anymore ;-)