July 24, 2006

What if the judge reads the lawprof's blog?

And the lawprof has analyzed the issue in the judge's case? Howard Bashman asks:
What is the judge to do? Should he stop reading the blog post immediately? Or if he reads the post, is he obligated to alert the parties to its existence and his knowledge of it?

In my view, if the blog post is publicly available to anyone with Internet access, and if the blogger has not taken any steps other than publishing the post to draw it to the attention of the judges before whom a case is pending, then those judges are free to consider and rely on that information if they find it to be helpful. Such a blog post cannot be viewed as an impermissible ex parte communication any more than a New York Times editorial endorsing a particular outcome in a pending U.S. Supreme Court case could be viewed as such....

[A]judge's consultation of those blog posts is, in my view, just another form of permissible legal research.
Is there any trace of a problem here? There's the suggestion that blogging is a too-easy way around writing an amicus brief. (But so is doing an op-ed.) And there's the suggestion that blog posts are written hastily and without much editing. But judges and lawyers are thoroughly used to reading things and deciding what they are worth. (And plenty of law review articles and court briefs and cases are badly done.)

The main thing I can think of is that blog reading can be seductive, eroding your patience for belabored writing, and judges and their clerks might read blogs out of proportion to their actual worth. A relatively small proportion of lawprofs are writing blogs, and the ones who are doing it aren't necessarily the best scholars. We're just the people who love to write in this form.

UPDATE: Howard Bashman responds to this post by recounting an event where judges were fretting about this (non)problem. Judges!

22 comments:

David said...

What if the lawprof is on the brief?

AJD said...

"...the ones who are doing it aren't necessarily the best scholars..."

To put it mildly!!

HaloJonesFan said...

I would say that reading blog posts--and writing them--is on the same level as any other publication. If it's okay to, e.g., read a newspaper article about something, then it's okay to read a blog post about it. And, similarly, if you would be allowed to publish what amounts to an editorial piece, then you can do that.

Joe said...

Judges and clerks who would rely on a blog over a memorandum of law and their own independent research are lazy and are probably prone to being reversed anyway.

Simon said...

what if the Judge reads an op/ed about the case in the New York Times, analyzing the issue in the Judge's case? Should he stop reading the New York Times immediately? Or, if he reads the op/ed, is he obligated to alert the parties to its existence and his knowledge of it?

Why should Breyer recuse himself every time the Washington Post opines on a subject before the court? Should Souter have recused himself from Granholm because he subscribes to Zymurgy?

Why is there such a bizarre messianic hullaballoo entailed every time the word "blog" is mentioned outside of blogging circles? They're just a communication medium. There is no difference between reading a blog and reading an op/ed, or listening to NPR (or Rush), or anything else of that nature - just a more diverse range of opinions. I stress reading, though, because the real issue here exists purely where traditional media leaves off and blogs begin. If the Judge just reads, then there is no issue; however, it's if the judge gets into an argument in the comments section about the case that there's a problem.

HaloJonesFan said...

From a legal standpoint--and bear in mind that I'm not a lawyer--I think that it would be problematic. The issue is that the people involved in a case are making arguments outside the context of the courtroom, and the courtroom has specific requirements for what arguments you may present and how you may present them. Once you're outside this context, you are no longer restricted in how you can argue...and the opposition has much less opportunity for redress or reaction.

Marghlar said...

As long as it isn't the parties, their advoacates, or the judge doing the blogging, there isn't even a smigdgen of a problem here.

Marghlar said...

Although judges would be advised to be cautious before relying upon blogs, given that they may be less carefully researched and less likely to be fact- and cite-checked than traditional scholarship.

stealthlawprof said...

It seems to me that some folks are having a hard time dividing between questions of law and questions of fact. If the judge goes beyond what is presented in the courtroom to decide a question of fact, we have a problem. The same is not true for questions of law -- otherwise, the judge could not do any independent research and would be entirely dependent on the briefs filed. (That, in my experience, would be a sad state of affairs.)

There is no justification for putting a gag order on the participants in the case. Let them comment in public fora all they want on the legal issues presented.

I do think that, as a matter of courtesy, if the judge knows ahead of the submission of the case that a particular argument seems particularly persuasive, the judge should inform the parties and invite them to submit brief responses. (I.e., "I read a line of discussion on this issue at Professor Althouse's blog, and I was particularly impressed by the arguments made there by Professor Althouse and Stealthlawprof. The clerk has copies of those items, if you are interested. I invite you to respond with a supplemental brief not to exceed five pages if you feel there is something in this discussion that deserves further response.")

As a practical matter, the judge is more likely to come across the blog after the case is under advisement. The judge could order reargument, but that is unlikely. More often, regardless of the source of the novel legal theory, the judge will simply decide the law based on all of the resources available, whether discussed by counsel or not. I see no benefit in altering this pattern.

Simon said...

StealthLawProf (and to some extent, HaloJones) - per my previous comment, what is the difference, though, between reading something on a blog and reading it anywhere else? The primary difference between a blog and any other form of media is the opportunity for participation and multilateral communication; if one does not engage in those aspects, and merely reads (for example, while I may comment actively here, I almost never comment at Becker-Posner, even though I read virtually every post), then the blog is functionally identical to dead tree media.

Ergo, StealthLawProf's position seems absurd to me, because it legitimizes this imaginary line between blogs and other media: "as a matter of courtesy, if the judge knows ahead of the submission of the case that a particular argument seems particularly persuasive, the judge should inform the parties and invite them to submit brief responses." What?! If the judge knows ahead of the case that a particular agument seems particularly pursuasive, what does it matter where she read it? What is the principle that narrows this rule only to blogs - why not send counsel for both parties a complete list of the Law Review articles the judge has read in the last X years which might bear on the case, with a list of the arguments she finds particularly pursuasive therein and invite counsel to submit additional briefs commenting thereupon? Come to think of it, why shouldn't counsel be aware of the Judge's full web surfing history and reading habits, since a particularly pursuasive argument might be stumbled across while reading almost anything? Should the Judge send a brief note to counsel: "Dear Counsellors, I was watching CSPAN last night, and they had this line of discussion in a debate between Justice Scalia and Justice Breyer. Anyway, chaps, I was particularly impressed by the arguments made there by Justice Breyer. The clerk has copies of the transcript, if you are interested. I invite you to respond with a supplemental brief not to exceed five pages if you feel there is something in this discussion that deserves further response." Does a Judge have to invite supplemental briefs every time she turns on the television?

Is there some relevant principal that justifies singling out blogs for this bizarre and peculiar treatment?

Bissage said...

I've known judges to order post-argument briefs on the applicability of specific cases/theories not advanced by the parties. I suppose a judge could order briefs on the applicability of points set forth in a specific blog posting. That sounds mighty unconventional to me. Still, you never know . . .

wv: "ksixem" Seems I ought to be able to do something with that. Oh well. Maybe next time.

Simon said...

It would seem to offend the baseball metaphor, wouldn't it? Asking for additional briefing on issues the court raises sua sponte would seem to be the equivalent of asking the pitcher to have another go using a different kind of pitch.

This question of actually one that I think appertains to the question of what will happen next term in Carhart. What if the law is actually unconstitutional on federalism principles, but neither party raises that argument? Should the court say "well, the law isn't unconstitutional for the particular reason that the plaintiffs advance, but we reserve judgement on whether it might be unconstitutional in ways not raised by the plaintiffs" - the proverbial "try again sometime!" answer.

Marghlar said...

[w]hat is the difference, though, between reading something on a blog and reading it anywhere else

Well, there is at least one relevant difference. Blogging is cheap and unmediated. Because of that, there needn't be the same level of fact or cite-checking available in more traditional publications. Even the student-published journals do a thorough read of every article, demand authority for every factual assertion, and check every source cited to ensure it supports the argument. There is a significant value-added there, in terms of the reliability of such publications.

Even op-eds have at least some fact-checking done (although much less, and the records of newspapers are not always spotless on this front). Still, in theory, publication through traditional media generally entails some independent verification that a blog lacks.

None of which is to say that blogs are useless as authority -- indeed, we are seeing a steady uptick in blog citations (sentencing law and policy does particularly well), and some blogs are now cited more often than the vast majority of law reviews. But I wouldn't be as quick to conclude that a blog posting is equally meritorious as a legal reference. It can be dashed off with much less thought and attention, and passes through far fewer gates on its way to being read. That does matter.

JohnF said...

Obvioiusly, the judge should not rely on a blog, or anything else outside the record, for factual information.

As far as legal argument is concerned, who cares? The judge will evaluate it for what it's worth. If he appropriates a clever argument--first seen on a blog--as his own, it's hard to see how justice is less well served than if he'd thought of it himself.

gorjus said...

I write to echo Simon's excellent comment--which encapsulates the entire debate: who cares if the argument comes from open media (such as a blog or a newspaper) or an old book or movie or what have you? I recently reread a series of essays by Justice Cardozo, triggering a new way of looking at a problem. Is that odd in any way?

It seems to me there is a subtle distinction between "acknowledged" sources--such as law reviews (which are likely considered sua sponte by the court) and amici--and "unacknowledged" sources, such as op-eds, blogs, and the like. And as then-associate Justice Rehnquist said one million years ago, it's faintly ridiculous to presume any judge is a "tabula rasa."

As blogs are off the "acknowledged" source list, Marghlar, I'm curious to know what blogs are being cited as extensively as you suggest. I know about the Ninth Circuit's Batzel footnote-shout-out, but that’s about it. I'm still seeing most appellate courts have to struggle to define what a "blog" actually is.

Marghlar said...

Happy to oblige, Gorjus. Check out 3L Epiphany's analysis. One blog, Sentencing Law and Policy, has already been cited in 17 court cases. That's doing much better than most legal scholarship, which is almost never cited by courts (and much of it is never cited even by other scholarship). This is particularly striking given that blogs are a new and emerging form of legal scholarship.

gorjus said...

Amazing, and thanks for the citation! How long, then, before we see student-run reviews turn wholly to the internet for "instant" publication? Are people more likely to read How Appealing than the Yale Law Review? (I know I read the former, but rarely the latter).

Simon said...

Marghlar,
That's all true, but I don't think we're talking about citing as authority - or even citing at all, for that matter. We're talking about a situation where a judge reads something online which raises (or at least suggests) a legal argument that appeals to the judge. So, for example, my comment above about Carhart - no judge would cite that, but as I understand the import of this thread, if a Judge read that and thought it was interesting and went off to research it, would he have to declare it to the parties? And would that be different if I wrote it as part of a Weekly Standard op/ed? And if so, why? So I think that the question of what authorities are appropriate for courts to cite may be related, but it is a very different topic. As I see it, this is a question of, wwhat are the salient differences between an idea that originates on a blog and an idea that originates in a newspaper?

Marghlar said...

But Simon, I'd suggest that even a legal idea has utility in proportion to the accuracy of the sources of law from which it arises. We don't just make up legal rules out of whole cloth, we parse them from precedent, text and prior analysis. So, I think that even the reliability of ideas (as opposed to authorities) is raised by knowing that the sources listed have been checked out, to some degree.

Thus, let's take as an example your proposal, a while back, to reform the removal statutes. You asserted various things about what the statutes say, and how they have been interpreted. Your proposal is more useful to the degree that all those things are true -- formal publication would verify that.

Marghlar said...

Gorjus: to answer your question, a lot of major reviews are experimenting with web publication. Harvard now web-publishes response pieces. Yale has an online magazine. And some reviews (both major and minor) are even planning or implementing experiments in blog-form scholarship. Maybe the marriage will work, maybe not. But both authors and journals can see that there are advantages to be gained by the speed of web publication, and by publishing shorter, more accessible pieces.

stealthlawprof said...

I do not know why anyone would get the idea that I am singling out blogs for different treatment. Actually, I am arguing the opposite.

The scenario I raise with regard to inviting additional briefing occurs with reference to more traditional sources. I am simply saying it should be the same with a blog. Just as a judge might say the argument raised by Judge X in the 13th circuit or the analysis of this in the University of East Podunk Law Review intrigues me, the judge should be free to refer to a blog. Perhaps providing counsel with copies is overkill, but I suspect there are lawyers who would do not know how to find blogs very well. No need to torment them.

The larger issue of when judges should go beyond the legal arguments made by counsel is an interesting issue. With the facts, it is easier to hold the parties to their specific presentation. But in a system of precedent, many non-parties may be affected by the legal decisions. There is an argument that the judge has a broader obligation to look at the appropriate legal arguments even if the lawyers did not see them.

HaloJonesFan said...

"I do not know why anyone would get the idea that I am singling out blogs for different treatment. Actually, I am arguing the opposite.

The scenario I raise with regard to inviting additional briefing occurs with reference to more traditional sources. I am simply saying it should be the same with a blog. "

Which is exactly what I said, as well. People, you need to read the comment instead of just seeing disagreement.