May 8, 2007

The "new media" panel at the 7th Circuit conference.

I'm reading Christine Hurt's comments on the "new media" panel from yesterday's 7th Circuit conference, and I realize I still haven't put my comments in writing.

As Christine notes, one of the questions asked by the moderator -- Judge Diane Sykes -- was "What impact does law blogging have on the judiciary and are there any ethical considerations that are triggered by judges reading blogs?" I think all of us bloggers -- Christine, me, Howard Bashman, Richard Garnett, Jason Czarnezki, and Eugene Volokh -- thought that blog posts that might influence real decisions are no more worrisome than newspaper op-eds. They're published openly, so what's the problem?
[O]ne questioner in the audience questioned the ethical propriety of trying to influence a judge on a pending case. Again, the panel did not believe that this phenomenon was any more troubling that op-eds about pending cases or law review articles arguing what the law ought to be in general in a specific area. However, from overhearing the audience participants after the panel, I understood that the questioner's concern was widespread.

I formed a hypothesis that at least some practitioners (the ones that I overheard) were concerned that blogs created a one-way advantage in the way that ex parte conversations do. If one litigant can get the attention of the blogs, then is the other litigant at a disadvantage? One woman near me said to her colleague "The thing about blogs is that if they say something about me, I can't respond." I wanted to assure her that most blogs have "comment" functions, but I didn't want to fuel her paranoia. What is it about blogs that non-bloggers find so dangerous (and "unduly influential")?
Interesting! I think people do feel threatened by blogs. Suddenly, a new set of individuals have amplified voices and a daily audience. That has always been the case with mainstream media, but this seems so strange and chaotic. You might want to tell them that since anyone can do it, it's less disturbing than mainstream media, which used to dominate and monopolize. But with blogs, there are so many of them and they might say anything about anything. They might make a point of being completely unfair. Some of the most popular blogs got popular that way. And what must be even more confounding is that it seems that in order to balance the blogs that go against you, you're supposed to blog too. It's horrifying to think that you may be required to blog. Blogging is a new kind of speech competition -- a speech rat race. What?! Now we have to keep up with the Instapundits?!

But this insinuation that the legal bloggers are unethical -- I think that's a desperate ploy to get us to stop or at least feel constrained. They feel threatened, so they'd like to make us feel threatened back. But it's such a lame argument to suggest blog posts are somehow like ex parte communications with the judge.

Anyway, I enjoyed this subject of judges reading blogs. Howard Bashman had a story of someone seeing that Chief Justice Roberts having How Appealing shamelessly displayed on his computer screen. Do they have to think now about how their opinions will play in the blogs? And is it good -- or somehow degraded -- for them to be thinking about such things? Do they suspect the other judges of writing lines that the bloggers will quote? But that's not much different from looking at what the newspapers think or seeing what lines get quoted in the newspaper, and as Eugene Volokh said on the panel, at least the bloggers link to the original texts. The newspapers choose what they want to quote or paraphrase, but then that's all the readers get. The law bloggers as a rule link to the text of the case or the transcript of the oral argument, and if we've taken something out of context, our readers can go right to the source, and they can call us on our distortions in our comments sections or on their own blogs.

I noted that the panel was heavily stocked with academic bloggers. It was a relatively sedate group, if I was the edgiest person there. I said I thought it was good for judges to read the more irreverent bloggers like David Lat because judges -- even more than law professors -- are often surrounded by people who are extremely deferential to them, and they ought to want to expose themselves to some different attitude. Law blogs are a handy way for them to transcend the cocoon.

More about the panel later, maybe. I've got a huge deadline to meet in the next 16 hours. Plus, "American Idol" is on tonight.

ADDED: It occurs to me that lawyers just don't know how to use Google or Technorati to check to see if anyone is blogging about their cases, so that the discussion really doesn't seem to be going on openly and in public. The solution is obvious: They need to learn.


Seven Machos said...

It's amazing that the same people who claim to never stand athwart free speech continue to call for restraints on the exercise of free political speech or question the ethics of the exercise of free political speech.

Basically, where free speech seems to stand in the United States is: in no way can Piss Christ not be publicly funded, but political groups are severely hamstrung in how they can speak at the most crucial time -- around elections -- and there are questions about bloggers who write about court cases and many people (all on the left) want to institute a doctrine forcing various media to publicize their unpopular views.


Methadras said...

Blogging is clearly the wild west of the internet in it's current form. However, I don't see that as a bad thing. If a blog doesn't allow you to introduce commentary, e.g., Andrew Sullivan, does that make that blog worthy of your eyeball time? Or does the Andrew Sullivan blog and blogs that don't allow commentary to blog entries nothing more than monodirectional propagandist agenda sites? I don't think so, but the quote Ann heard:

"The thing about blogs is that if they say something about me, I can't respond." can be a very powerful aversion to blogging and reading blogs in general. I can't comment on the legal blogs because I'm neither in the legal profession, nor a lawyer, but the symptoms might be the same for all blogs.

Daryl said...

it's such a lame argument to suggest blog posts are somehow like ex parte communications with the judge.

I can understand it. There's a sense of powerlessness and lack of information. You don't know what the judge is actually reading, or if there are some arguments he finds convincing that neither of you are addressing.

I can understand why a lawyer arguing in front of a judge would feel paranoid like that. Whenever people face a difficult situation, they tend to like to control as much of it as possible.

It would be best if the judge would mention which op-eds, books, law review articles, blog posts, etc. that she read and raised issues that have not yet been addressed. If she wants feedback on some issue she could ask for it.

As far as the idea that lawyers can respond to bloggers with blog comments, that just doesn't work. For one, the judge may have seen the post before the lawyer put up the comment. Second, lawyers would have less time to respond with comments, and might say something that could later be used against them or would look dumb (or should they comment anonymously?). Third, not all blogs allow comments. Fourth, some bloggers will edit your comments if they don't like what you're saying (can't do that on Blog*Spot but certain leftist blogs do it all the time). Fifth, there's no reason lawyers should have to argue there when the proper place is the courtroom.

dave™© said...

Oh, is this a "legal" blog?

The blog that spent weeks refusing to address the exploding scandal at the heart of the Justice Department?

Whatever you say, lady. Have another box of wine.

Boaz said...

In my clerking experience, it happened quite often that parties would fail to address in their briefs issues that would be dispositve for their motions. Out of fairness, the court would issue an order asking for briefing on the issue, and the order would be written in a manner suggesting what the court was thinking. After briefing, the court would issue its opinion.

It never happened taht a blog post would lead the court in a direction away from the briefs. But if it did, the same procedure would probably be used.

Seven Machos said...

Heads really rolled in that Department of Justice scandal. Who do you think will star in the mini-series?

Ronald Coleman said...

Why aren't we concerned that judges also read the New York Times which certainly doesn't have "comments"? It's the same thing.

Joan said...

It occurs to me that lawyers just don't know how to use Google or Technorati to check to see if anyone is blogging about their cases

No way. I'm sorry, but there is no way that can be true, can there? Don't lawyers cut their brief-writing teeth using search engine tools like Lexis/Nexis? Who in this day and age has not heard of Google? Technorati is a bit more obscure, I'll grant, but c'mon -- not knowing how to Google? Lame! Even my 80-year-old, internet-phobic mom knows about Google. There's no excuse.

Vogrin said...

"If one litigant can get the attention of the blogs, then is the other litigant at a disadvantage? One woman near me said to her colleague "The thing about blogs is that if they say something about me, I can't respond." "

And if a reporter writes a biased article, is that the same as ex parte, too? Should we shut down the New York Times because of their incredibly bad, and demonstrably false, articles on the Duke Non-Rape Case?

hdhouse said...

Vogrin said..." Should we shut down the New York Times because of their incredibly bad, and demonstrably false, articles on the Duke Non-Rape Case?"

The thing that sets me off about silly comments like this is the effect they have on the great unwashed. Have you never taken a research methods course in graduate school "before the internet"? probably not.

what those courses teach you is to dig. on the first level, the very first you know when you are writing out your initial set of index cards (yes by hand) and you go to a good library that has perhaps 30 different encyclopedias and you read every article on your subject and you not the salient "facts" listed and then the discrepancies....birth dates, education, facts..just facts...and your first job as a researcher is to find the "next source down" that explains or sheds light on where the facts went off course and then you go deeper and deeper until you hit the original source material.

It takes discipline and you don't throw the baby out with the bath water. You who are quick to decry the NYTimes should note that their accuracy rate far exceeds almost any other daily print source and I ask you what do you propose as the newspaper of record? the washington times?

it is tiring and irksum that there are people who cast the broad tent without the discipline to do the work and read and research before they just spew.

hdhouse said...

as to the point of this thread...

why do we attribute judges to having intellectual resources big enough to see blogs as what they are...transient expressions...talking areas...the public square...the kiosk in the center of town...

some come with more ammunition and more reasoned approaches while others merely 'get it off their chest'. either way, if a jurist or anyone for that matter takes the public forum as anything other than "i think..." then they are fools. as to more discerning blogs...maybe just maybe some angle will pop up that wasn't thought of before and that is to the good, party or not, ... thinking is never bad. some on here should try it.

DWPittelli said...

The worry that judges will be concerned about what the blogs will say would make sense -- in the alternate universe where they haven't long been at least equally concerned with what Nina Totenberg would say.

DWPittelli said...

Vogrin did not suggest shutting down the NY Times, despite her example of their egregious misreporting. Vogrin put that up as up a straw man, to show why it is silly to attack blogs because they are like ex parte communications.

That fact, and your lengthy and irrelevant example of the sort of procedures the NY Times did not perform in the Duke case, makes yours the "silly" comment.

Ann Althouse said...

hdhouse: What you've said about research doesn't fit legal research that well. We are always in the primary sources. It's where you start. And when you're talking about new cases coming out -- which is what the Supreme Court reporters at the conference were -- they get the new text of the cases exactly at the same time that the lawyers and lawprofs do. We're all equally close to the source and some of us are in a better position to understand it than they are. They do have to write standard descriptions for the newspaper, but the newspaper is not serving the historical record in the same way it would in other areas. They do have access to the courtroom and can provide comments about how various justices looked and sounded, which is not too important. The serious, same-day analysis of Supreme Court cases goes on in the blogs, and the regular reporters are clearly threatened in their role.

Bissage said...

Bloggers are a potential source of abundant criticism. Many judges hate and fear criticism. You really have to see a judicial panic attack up close to fully appreciate its absurd dimensions. It’s as if the judge believes that getting caught in an error means he or she will get fired. Still, I guess that’s better than not giving a flying f*ck what other people think. Some judges don’t.

Regarding ex parte communications, I love how people talk as if it has everything to do with asymmetrical information. Ha! Judges are positively awash in antagonistic information! No. The primary reason ethical rules generally prohibit ex parte communications is because they look to the suspicious like an opportunity to negotiate a bribe.

(The prohibition also gives judges a good excuse to avoid pushy pro se litigants.)

Ann Althouse said...

Joan: Many of these lawyers and judges are old. I'll bet some avoid computers altogether. But even of those who use computers and presumably can Google, I'll bet they don't know how to do a search limited to blogs.

Ann Althouse said...

And I'll bet they don't know how to tell which blogs might be read by judges and which are just the riffraff bloggers. And don't you think my blog confuses people? Part of my style is to confuse people about when and whether to take me seriously. I think dealing with that is good for lawyers and judges, who are too staid. But it's troublesome to be challenged not to be so stodgy.

Assistant Village Idiot said...

There is an impressionistic ppart of the fear as well. Newspapers are seen as respectable, familiar, generally trustworthy sources that people grew up with. They know their way around a newspaper.

Blogs, or any of that internet series-of-tubes stuff seems more shadowy to people. Geeky people who can do things with computers run that world and it seems chaotic to people. The actual reality of which source is fairer, more accessible, more transparent, more detailed - this may matter less than the impression at present.

From Inwood said...

Three thoughts

First when I was young and..., another young lawyer from a high powered firm said to me that he thought that attorneys for appellants & appellees should have access to the legal memos prepared by the judges' clerks so that they could consider the matters raised therein & address/refute them as they could with their opponents' briefs

I suggested that he & his firm do their jobs & address all the issues exhaustively & stop worrying whether the clerk was going to find the key to deciding the case after so many had spent so much time on it.

Second, some judges read things like the Bible or some secular bible like the NYTimes all the time & are quite open about it. It’s possible that they have faith in such & are influenced by such. So what? BTW, what was the subject of the Sunday Sermon at the church attended by the Justices before your oral argument on Monday? Don't we want to be on top of that?

Third, to the point of reporting vs analysis. The Media gets the results out fast & generally gets it right in the sense of “who won”. But with landmark cases at the SCOTUS level with multiple, er nuanced, opinions & a cobbled together majority for a narrow point creating a situation where this case will not be the “last word” on the subject, I suggest that bloggers with some expertise on a particular issue do a better analysis of the case than a MSM law-school grad reporter who has no such particular expertise. And we need both: the fast result & the well-thought out analysis. The MSM gets a pass on the superficiality issue, but superficial bloggers have no place in this binary world & the readers will judge what to read. So, once again, the media will not be put out of business by the blogs. Nor vice versa.

Finally, I wish that all judges could write as clearly & concisely as the authors of the really good legal blogs.