September 4, 2010

Do blogging lawprofs wield too much power?

Orin Kerr reports:
On August 19th, Justice Kennedy gave an address that included an interesting passing remark about the role of blogs. Justice Kennedy was talking about how law review case comments generally come out too late to be of use to the Court (especially in the context of deciding whether to grant certiorari in a case). As a result, when Justice Kennedy asks his clerks to look to see what the law reviews have said about a particular case, there isn’t any commentary yet. Justice Kennedy adds: “I’ve found, what my clerks do now, when they have interesting cases — They read blogs.”
This means that the lawprofs who keep up high-profile blogs have disproportionate influence. You have traditional lawprofs laboring over law review articles, but these articles come out too late to discuss a case that's pending in the Supreme Court. One answer — I'm not the first to say this* — is that law review articles should properly be about something other than the latest pending or just-decided cases, something more timeless and profound. But I think that most law professors would like to be involved in the legal developments of the day. It must be irritating to see that the lawprof bloggers have a special line to the Court.

This may stir up an old question that I know nags at some law professors: Will I be required to blog? Very soon after I started blogging, I heard the question is it acceptable for lawprofs to blog? and then, right after that, the question will I be required to blog? jumped up. In the minds of some non-blogging lawprofs, it preceded the question is it good for lawprofs to blog? — which seemed like a more appropriate question to me. But I can see why someone with a legal mind would ask will I be required to blog? before is it good for lawprofs to blog? It's the same reason lawyers think what do I want the answer to be? before they try to figure out what the answer is.

Anyway, Justice Kennedy's remark shows why it's good for lawprofs to blog, but it would be ridiculous to require lawprofs to blog. Wouldn't it? Or is it ridiculous to require lawprofs to write law review articles?


*And I'm writing this too quickly to figure out who else has said this.


Opus One Media said...

Interesting question but after participating on this blog for a long time, I don't see it (this) as an exercise as so little that goes on here relates to the the law on any kind of scholarly level except for what Ann pushes out on occasion and I am hoping that the clerks are reading well intentioned blogs as a starter.

I read a lot of the law blogs just because and frankly I am amazed at the somewhat banal set of comments and discussions that either simmer or erupt. Much like here when Ann brings up something legal, the field is clouded with halftruth and downright false stuff and it doesn't help in figuring things out.

I hope that the clerks figure out which is which and if they do get caught up in the misinformation stream that they realize that whatever decisions they help form will be similarly greeted by a wealth of ignorance.

Chase said...

We now know that Supreme Court clerks - and therefore by extension Supreme Court Justices - read and consider blogs by law Profs (Congratulations, Professor Ann!)

My question - do the comments to the post also have an impact and consideration at the Supreme Court?

I do believe that this blog in particular actually has national ramifications. An example: the firing of General McChrystal. It was revealed that one of the influencing parts of discussion by the President and his advisors on which course of action to take regarding McChrystal was the strong stand made on blogs by conservative commenters for firing McCrystal for his allowing trashing of the President. According to the source talking about discussions, the President felt secure that he had the part of the country that mattered on this issue behind hs decision to fire McCrystal.

Interestingly, a check of Google Blogs at the time showed that the first major blog to pick-up and run with the story of McCrystal in the Rolling Stone was - you guessed it - "Althouse".

Lots of readers - and obviously a lot of important ones.

roesch-voltaire said...

Although not a lawyer, I read The Volokh Conspiracy to get a flavor for the thinking and writing style, and I guess these well written public blogs are bound to have some influence as they cite each other. Note Aderson's blog citing Althouse :)

DaveW said...

I dunno about too much power. It's your profession and I've read enough to know I don't have a good understanding of the lawyer mindset.

You do have influence. I believe Volokh has been quoted in a couple of cases. There may be others over there that I don't know about. But too much? Why? The legal analysis from people like Kerr and others looks pretty high quality to me.

It's interesting to me that I've gravitated to law (or lawyer written) blogs over the years. If you go down my favorites you'll find Powerline, Insty, Althouse, Volokh, Bainbridge and others. I've tried a bit to figure out why that is and the nearest thing I come up with is the quality of writing is pretty high on lawyer blogs.

As far as whether law profs should be required to blog...I don't think so, and I'm not sure how that would work, but if it was made clear up front that was a condition of your employment, then...

How about this? You blog if you want, and I'll read if I want, and if a law clerk wants to read a blog for legal point she/he can just take responsibility for her/his own behavior?

Chase said...

I do read Volokh regularly as well as this and Hugh Hewitt and Bainbridge. It is true that the level of writing is better from law professors.

I have a hard time understanding why a law professor commenting an a case soon after it is taken by an appeals court would not be valid for influence by the time it gets to the Supreme Court.

Anonymous said...

Do blogging lawprofs wield too much power?

Answer: no - they don't wield enough power.

Consequently we're stuck reading copy by leftist journalists and listening to serious sounding piffle from news-reader celebrities like Katie Couric.

Ann, the ascendancy of Katie Couric I blame on your relative lack of power.

It's all your fault.

Put down the camera and get to work. We're all dying out here.

Anonymous said...

(Have you considered holding an Althouse rally at the reflecting pool in DC?)

GMay said...

HDHouse offered: "I read a lot of the law blogs just because and frankly I am amazed at the somewhat banal set of comments and discussions that either simmer or erupt."

Pat yourself on the back big guy.

Trooper York said...

Jeeez, youse guys are real impressed with your mighty powers.

I mean seriously.

Everybody knows that these judges are just making up shit as they go along.

bagoh20 said...

Yes, mainly because they influence and are part of the one group in America that definitely has too much power - lawyers. Such an imbalance in the power structure, regardless of what group dominates it, is unhealthy. More plumbers, doctors, carpenters, small business people, etc.; but definately less lawyers, please.

Chris said...

I'd argue that any judge, especially one on an appellate court or a court of final appeal, has an obligation to consider as many different lines of reasoning as possible. The fact that blogs are quicker than journals in offering up opinions is a mark in their favor, not against it.

Daniel said...

If the community of law professors will not voluntarily devise a working solution to this problem, then perhaps a blue ribbon panel of experts can recommend a proper regulatory framework that would reign in the excesses.

Baronger said...

So I guess you will have a huge influx if a case, involving CAFE standards for cars is accepted by the Supreme court.

Eric said...

Consequently we're stuck reading copy by leftist journalists and listening to serious sounding piffle from news-reader celebrities like Katie Couric.

Not for too much longer. One of Couric's five viewers just went to a home where they only watch the quilting channel on the common-room television.

Fred4Pres said...

Why not have more law professors run for political office, like this one?

Chase, is Althouse really a law professor blog (like Volokh or Balkinization or even some of Professor Bainbridge--at least as it applies to corporate law)? While Glenn Reynolds and Althouse do touch on legal issues on a regular basis (Glenn focused on second amendment and libertarian points of view, Ann on general constitutional law issues), the bulk of their blogs are not about law. Bainbridge divides his three ways (1. food and wine, 2. corporate legal issues, and 3. politics-current events-sports). Balkin's is mostly a law blog but it focuses on civil liberty issues.

Of them all, Volokh is the only one that is truly a law blog. Unless you coinsider this site a law blog.

Fred4Pres said...

So the question is does Justice Kennedy unwind by surfing the web (with his clerks)?

That might explain Ann's focus on Justice Kennedy being the swing vote on gay marriage (you have the green light to "do the right thing" from Althouse Mr. Justice! Don't let those fuddy duddy homophobes get you down.).

AST said...

I think Justice Kennedy wields too much power. A juror who was reading blogs to inform his deliberations would be committing misconduct and grounds for a mistrial.

Chase said...


I would agree that Ann and Glenn's blogs aren't staright "law blogs".

But there is little doubt that they are widely read by those in the legal community, including the Supreme Court.

So, what's the problem - there is also little doubt that the same people read papers and magazines.

Anonymous said...

My ignorance will be showing, but why do judges look at law review comments and other extraneous gibberish, anyway?

Banshee said...

"It's the same reason lawyers think 'what do I want the answer to be?' before they try to figure out what the answer is."

Like in Murray Porath's song "Cheap Lawyer":

Ask a housewife how much two and two is,
And without hesitation, she'll tell you it's four.
Ask an accountant and he'll say 'I'm fairly certain,
But let me run through those figures once more.'
Ask a doctor and he'll think about malpractice,
And say 'I'm fairly sure that at the very least it's three.'
But ask a lawyer -- he'll lock the doors and draw the curtains,
And whisper 'How much do you want it to be?'

Bruce said...

This entire question suggests that law professors earn their livings too easily, such that they may commit the sin of Onan lounging about on such pseudo-ethical questions.