May 11, 2007

Comprehensive coverage of the Biskupic speech and the traditional and new media panels at the 7th Circuit Conference.

Fortunately, someone was there taking complete notes and has the energy to write it all up. I'm eager to read this if only to find out what I said. I have some notes, but they're really sketchy. Actually, I have some sketches too, and I'll scan them later today. (I mean, if you're hankering for caricatures of Judge Posner and Geoffrey Stone, you will be fulfilled.) For now, let's check out what was Simon has to say -- a lot! -- about what everybody said about law and the old and new media. I'll just quote one passage to give you a taste of the detail:
[Judge Diane] Sykes steers the panel to another aspect of the impact of blogs: should judges read them? Should they cite them? Volokh chuckles that they should definitely cite them. As to reading them: he doesn't see how in this regard reading them is any different to1 reading a newspaper. He adds that blogs can almost serve as a quasi-Amicus brief, one that bypasses the cumbersome amicus process. And as a general rule, he adds, if you get an idea from a source, any source - be it an Amicus brief, the New York Times or Sentencing Law & Policy, you should cite it. The session's only question a little later picks up on this, wondering if it's appropriate for blogs to try and influence judges. Volokh observes that logs are public information no less so than a treatise or a newspaper, they are citable and should be cited, and while it might be inappropriate to try and influence a judge in a private email conversation with them, doing so by putting forward arguments in the public record seems appropriate enough. In some senses, he says, what is legal scholarship other than an attempt to influence judges?

Bashman notes that Judges clearly read blogs: aside from the Chief Justice, who we know reads How Appealing (see above), if he points out a typographical error in an opinion on his blog, the opinion is usually corrected or temporarily withdrawn until it can be corrected within a half-hour. He's learned from this to save a copy of any opinions before pointing out particularly humorous typos.

Althouse doesn't see any impropriety per se, but observes that there's a concern that certain kinds of reporting on blogs might influence Judges to play to the audience a little; if a certain kind of opinion seems likely to get them good reviews on the blogs, there's a concern that might distort judicial behavior. "AMK," I write in the margin and underline twice. Connecting this to the subject of cameras in the court Ann mentions David Lat's "judicial superhotties" contest, and wonders what pressures it would exert on Justices for blogs to be writing catty and critical comments about the Justices' appearence. "Perhaps not every blogger would do that... But I would," she concludes, with a chuckle. (This is the day's audience laughter runner-up to Turley's line about Roberts.)


1Simon's English. And he likes footnotes. I haven't done a blog post footnote since my first year of blogging. I have a personal rule against it. But I'm breaking my rule here as a tribute to Simon for writing such a damned comprehensive post on the conference. It's really helpful. And full of good observations and insights. By the way, I deleted a footnote of his from the quoted passage. It was footnote 41! As for what Turley said about Roberts (and his family), I remembered that to blog about in my post about the media panels. It was: "They looked like they were raised hydroponically by Karl Rove."


TMink said...

Kudos to Simon! And here is to the footnote.


Simon said...

English only by birth, I hasten to add. :)

Re the footnotes, I was careful to wait until one of the very last notes to drop in the quote from Berman's article about how blogs don't lend themselves well to footnotes. Your rule about footnotes would presumably fall into your concern to keep blogs "bloggy," right?

Ann Althouse said...

I think footnotes can be bloggy. Jeremy Freese, for example, uses them bloggily on his blog. And I think a certain type of footnote can add blogginess to a print article.

Ann Althouse said...

"English only by birth..."

English enough to write "different to."

Simon said...

There are some English-Englishisms I insist on retaining, just for the value of idiosyncrasy - "cheque," for example. I wasn't even consciously aware that different to was deprecated until you pointed it out! :)

I guess I'm never going to gain admission to the Chancellor's English Society! ;)

Peter Palladas said...

"English only by birth..."

English enough to write "different to."

Excuse me ma'am! Show me an Englishman who writes 'to' where 'from' is required and I will show you a man - one most likely under the age of thirty - deserving of a flogging.

Unless he were quoting the speaker, in which circumstance this should be made unambiguously clear.

'Your [sic] hankering' or mine? ;)

Fen said...

Nicely done Simon.

Simon said...

Thanks, Fen. I'm still blushing from Ann's comments, and you're not helping. ;) I've got a lot of good feedback on this post. I have three more to write now, covering the balance of the conference panels, but none of them will be quite as long - this post aggregated two panels and a speech that covered related topics, while the others are separate.

Simon said...

And thanks Trey - sorry, wasn't meaning to exclude you. :)

Ann Althouse said...

"your hankering"

I hate when that happens. Thanks. Fixed.

J. said...

Simon can't be trusted when it comes to Judge Sykes. He's completely oggy about her! ;-)

Simon said...

J. - I scarcely dare guess what "oggy" means. ;) I've met her a couple of times, she seems very nice, and she's in the first rank of people I'd like to see on the Supreme Court. But just because I like and respect someone doesn't mean that I'm not going to disagree with them sometimes, and when that happens, I don't have any hesitation to say so. You might not always win someone's respect if you say what's on your mind, but you certainly won't win it by mindless obsequiousness. :)

Richard Dolan said...

It's a wonder that so much time is still being devoted to this "traditional media vs. new media" stuff. Putting aside journalism's guild mentality and the desire to protect a dwindling franchise, whatever substance there might be in that topic was beaten to death long ago -- and there wasn't much substance there to begin with. Perhaps the wonderful world of blogging is still new for some of the older 7th Circuit judges.

And the idea that blogs may be objectionable because they amount to an improper effort to influence a judge is just silly. There is nothing improper about any public commentary (in whatever form it takes) that seeks to influence a judge's thinking about some issue.

Volokh's idea that "if you get an idea from a source, any source - be it an Amicus brief, the New York Times or Sentencing Law & Policy, you should cite it" doesn't have much to recommend it. That's really just another guild mentality at work -- academics are the workers toiling away in the idea factory, so don't take our work without giving us our due, which for Volokh comes in the form of a judicial citation. But judicial opinion-writing has never been about giving "credit" for ideas in that sense, in part because it works on the premise that the judge is just a neutral umpire applying the Law objectively. Nor would it be an improvement if judicial opinions got even longer with a lot of pointless citations. As for citing an "amicus brief," it's quite rare for a judge to cite a brief as the source of anything other than, perhaps, an admission on some point. Rather than citing blogs as sources for ideas, it's quite enough to cite them (or any other similar source) when they're being used to supply some particular fact or statistic. As for general legal propositions, there are already endless volumes of appellate opinions just waiting to be cited. If a judge can't find something authoritative there to support whatever legal proposition he is relying on, he's not going to make his opinion more persuasive by citing some blog.

J. said...


Coupla problems:

1. My comments are always funnier in my head than in execution.

2. "J." = "Joe Baby." This newfangled blogoogle mashup wrecked my nickname. I was across the vestibule when you met Judge Sykes.

3. "Oggy" actually means "cornish pasty." Was obviously thinking of another word, now escaping me.

Now what I need is the brit slang word for superhotty.

Simon said...

Hey, Joe! :p Didn't recognize you, so to speak. ;)

Ruth Anne Adams said...

You're wrong. We need more obsequiosity.