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Monday
Dec212009

The Influence of Law Blogs on the Judicial Process

The debate continues over the value of law blogs and their role in the continuum of scholarship.  We have written extensively on this topic, including the possible role for blogs in law school rankings.  See Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings

More and more, academics seem to be coming around to the view that law blogs have an important role to play.  Some have done so because of the perceived improvement in the dynamics/technology of blogs.  As Orrin Kerr recently noted on the Volokh Conspiracy,

  • Searching the web for legal scholarship has become common. Blogs are indexed and available via Google minutes after they are posted. The culture of comment threads has developed more, encouraging more feedback between authors and readers. It has become easier to link posts and hide long text.

Nonetheless, not all law blogs qualify as scholarship, as Steven Bainbridge recently reminded, and not all law blogs are active participants in shaping the law.  So which ones qualify?  One answer requires reference to both demographics and the judicial system. 

First, some of the growing influence of law blogs can be put squarely at the door of demographics.  As a practical matter, those below 40 (which this author is not) are more likely to use the Internet to conduct legal research and search for information. 

Second, given this demographic reality, it would be important to know where younger lawyes have a disproportionate impact on shaping the law.  They are not, on the whole, managing partners at large law firms, general counsels at Fortune 500 companies, or judges sitting on the state or federal bench. 

They are, however, lawclerks to judges.  Despite the existence of permanent clerks and lawclerks who have already practiced, most still come directly from law school.  Lawclerks are likely to be younger and more technologically proficient than the bar as a whole.

They can, as a result, be counted on with some frequency to read law blogs that comment on cases under consideration within their respective chambers.  (The likelihood will no doubt vary depending upon the particular court considering the case, the public profile of the case, and the case's legal complexity).  As they research these cases, either to prepare their judges for oral argument or to draft opinions afterwards, they are likely to want to consider any erudite commentary that sheds light on these cases.

Blogs that focus on cases, therefore, can have an impact on ongoing litigation, even if in a sub silentio fashion.  They can also become part of counsel's strategy in dealing with important cases.  This was suggested in an exchange that I had with a prominent lawyer in Washington DC.  As this lawyer explained:   

  • I understand that Supreme Court clerks (and lower court clerks, as well) often check the blogs that cover their cases.  Appellate lawyers are aware of this practice, and, as a result, blogging is sometimes used as a kind of back-door, post-argument supplemental briefing.  In most appellate courts, particularly the Supreme Court, the court will only very rarely allow the filing of a post-argument brief to address an issue that arose during oral argument.  However, since bloggers discuss and comment on the oral argument in prominent cases, and since the clerks (and possibly the Justices themselves) read these posts, the blogosphere can serve as a vehicle to, in effect, continue the oral argument or supplement the briefing.

In other words, contemporaneous commentary on cases can influence the thinking of law clerks and judges.  So can discussions after oral argument, a circumstance facilitated by the quick posting of transcripts by the Supreme Court and the willingness of some circuits to put oral arguments online.  In effect, blogging can be a form of post-oral argument analysis. 

Discussion after oral argument can be particularly important for cases at the Supreme Court if used to address issues left unanswered or partially answered at oral argument.  For cases at the US court of appeals, the identity of the respective panels usually becomes known only just before argument occurs (the DC and 8th Circuit are the exceptions, see Neutral Assignment of Judges at the Court of Appeals).   Blog posts could at that point address concerns or positions of the particular jurists actually deciding the case.  

This suggests that law blogs focussing on cases can have accentuated influence.  This Blog does.  Moreover, as we have seen, TheRacetotheBottom increasingly makes appearances in briefs (for examples, go here and here).  During the Blog's coverage of the trial of Ward Churchill, it was common to enter the courtroom and see the latest posts from TheRacetotheBottom on the computer screens of counsel.

Not all law blogs do this.  Moreover, some that do merely throw off a paragraph or two that is more descriptive than analytical.  In the end, detailed analysis for important cases from those in the academy with deep expertise in the legal matters at issue may be the best way for blogs to play an active role in shaping the direction of the law.  

Reader Comments (4)

Of course, this is not really new, it's just faster. We used to use op-eds and articles placed in the National Law Journal, American Lawyer, etc, for the same purpose. Before the web, young law clerks actually read these to stay "hot."
December 21, 2009 | Unregistered CommenterRory Little
A good law review article on this precise topic: Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era" in the Stanford Law Review (Vol 61, Issue 6, 2009).
December 22, 2009 | Unregistered CommenterLandya
And if the blogs include non-record facts, reading the blog can raise additional ethical issues. See "The Curious Appellate Judge: Ethical Limits on Judicial Research," 28 Review of Litigation 131 (2008).
December 22, 2009 | Unregistered CommenterBeth Thornburg
While this function of law blogs may be most important to particular cases, law blogs serve another function for judges and clerks. For those interested in broader legal scholarship, blogs that highlight new scholarship are a useful resource. We have judges and judicial law clerks among our regular readership at the Legal History Blog http://legalhistoryblog.blogspot.com/, and I suspect that other substantive blogs, e.g. the Legal Theory Blog, do as well. Blogs provide techno-friendly judges with easier access to a wide array of scholarship in their areas of interest.
December 22, 2009 | Unregistered CommenterMary Dudziak

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