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Tom Goldstein Publisher

Posted Thu, November 3rd, 2011 9:34 am

Blogging with an eye to influencing courts

Today in the Community we’re discussing another question with general applicability to legal blogging:  the use of blogging to influence courts.  When is it permissible – either as a question of formal legal ethics or in some sense morally – to write a post in the hope and/or expectation that it will influence the outcome of a case?  When is it realistic to believe a post will have that effect?  This is our weekly topic sponsored by Bloomberg Law, in which we discuss an issue of more general interest to law students.


  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss the propriety of blogging with an eye to influencing courts.

    • Tom Goldstein – 0 Promoted Comments

      To get things started, here are what appear to be the basic ethical principles, at least for the D.C. Bar.
      Certain rules govern the lawyers in a case. Under Rule of Professional Responsibility 3.6, a “lawyer engaged in a case being tried to a judge or jury shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of mass public communication and will create a serious and imminent threat of material prejudice to the proceeding.”
      Another Rule seems to apply even to lawyers not in the case. Under Rule 3.5, a lawyer shall not “[s]eek to influence a judge, juror, prospective juror, or other official by means prohibited by law,” or “[e]ngage in conduct intended to disrupt any proceeding of a tribunal, including a deposition.” The commentary to the Rule – perhaps the most relevant guidance on these issues – also states that lawyers are expected not to contribute to contribute to a violation of the Code of Judicial Conduct, which in turn provides that judges are not meant to consider anything outside of the proceedings before them. See Canon 3(7).

    • Rick Hasen – 4 Promoted Comments

      So long as the communications are public, and offered for all litigants to see, I see no ethical problems with blogging with an intent to influence courts. Law professors often write law review articles suggesting how courts should decide open issues. Substantive blog posts are in the same tradition, except they arise in the context of actual litigation where there is a live dispute. Law professors can offer arguments and point to evidence which may have escaped the parties and courts in the throes of litigation. My initial blog post on the campaign contribution case, for example, pointed out that the federal district court failed to cite what appeared to be controlling Supreme Court authority on the question. This kind of blogging can only help judges make better decisions, and if the analysis is poor or off the mark, courts will freely ignore it.
      I offer one caveat on the ethical point. Sometimes a legal blogger blogs about a legal issue which is the same or similar to an issue the blogger is litigating in another case. I believe that the blogger has an obligation in such circumstances to point this out in substantive blog posts on the topic, so that judges and litigants can fully evaluate the post for problems of subconscious bias or other issues.

    • Steve Vladeck – 3 Promoted Comments

      It strikes me that this topic dovetails with the paper now circulating by Professor Richard Fallon about the role of law professor amicus briefs. In general, if one of the goals of legal scholarship is to influence how courts approach particular questions, and if blogging is part of legal scholarship, then it seems entirely natural that some folks would blog with an eye toward influencing courts. These are two big “ifs,” of course, but if one accepts both of them, then I’m hard-pressed to see why blogging to influence courts is any different from writing law review articles to influence courts.

      Instead, the real question to me is whether one accepts both assumptions–that is, whether it is an appropriate goal of legal scholarship to seek to influence judicial reasoning and whether blogging is part of legal scholarship. To my mind, the second assumption is the trickier one. Blogging doesn’t go through the same quality control–and I don’t just mean Bluebooking–as more conventional legal scholarship… Fewer eyes will typically read a blog post before it’s “live”; less time has passed in which the author has had a chance to fully consider their views; and so on. At the same time, blogging is necessarily more interactive than conventional legal scholarship, and so it’s more likely that shortcomings in the author’s reasoning and/or mistakes of fact or law will be quickly highlighted by others. Indeed, there were a rich series of debates several years ago about whether blogging _is_ legal scholarship. I don’t know that there is a clear answer to this question, other than “sometimes.”

      In that sense, I’m drawn to Professor Fallon’s discussion of the significance of academic expertise. If one is blogging about a subject in which they are an expert, and speaking to issues _as_ a law professor (as opposed to an informed citizen), then why distinguish between conventional legal scholarship and blogging? So far as I’m concerned, the line between the two is already a bit less clear than we might think…

      • Mike Dorf – 1 Promoted Comment

        I don’t disagree with anything thus far posted here. Putting aside bloggers who are also either lawyers or parties, there is, in principle anyway, no reason why the legal system ought to be more, or less, suspicious of influence on courts by material posted on a blog than by material published through other means. I agree with Steve Vladeck that the real-time aspect of blogging may make a blog post less reliable than a law review article, but as they say in the evidence world, that goes to weight, not admissibility.

        For my money, the core question is what it means to write a blog post or an article for the purpose of influencing a court. Most of us in legal academia are also lawyers, or at least were lawyers at one point, and we know the difference between writing advocacy versus writing scholarship. Good advocacy takes seriously counter-arguments for alternative positions, but it does so with a goal in mind. Good scholarship ideally begins with an open mind. Virtually every substantial piece of academic writing I do ends up taking a position at least somewhat different from the position with which I start. By contrast, when I write advocacy, the shape of the argument usually evolves in the writing, but there are certain fixed points. That is even true, at least for me, of “voluntary” advocacy, i.e., circumstances in which I support some substantive position because I favor it on normative grounds, and marshal the legal arguments as best I can.

        I haven’t yet seen Dick Fallon’s article on law professor amicus briefs, but I gave that issue some thought about a decade ago when Sam Issacharoff and I wrote briefly about the law professor statement regarding Bush v. Gore. The core worry is that one will leverage one’s scholarly reputation for advocacy purposes. This would not be a problem if we were confident that everything we wrote was evaluated on the merits rather than, even in part, because of who said it. But I think that is manifestly not the assumption behind law professor amicus briefs, which purport to speak with some authority. If that’s not a problem, it’s because courts discount the authority of law professors acting as amici, which would tend to defeat the purpose of such briefs.

        In the end, the worry about “borrowed authority” seems less serious to me for blogging than for law professor amicus briefs because there’s something about the blog style — snarky, chatty, and informal — that practically disclaims authority. Accordingly, I don’t fret that anything I write on my blog will be given TOO MUCH weight by judges or their law clerks. My usual worry is that I’ll have no impact whatsoever.

    • Steve Vladeck – 3 Promoted Comments

      Let me also add, just in brief response to Tom’s and Rick’s posts, that I think there _is_ a difference when folks who are directly involved in a case blog about it–just as when those who are directly involved in a case publish legal scholarship about it. My standard practice, at least, is to include a disclaimer in the opening footnote of any law review article (and a comparable disclaimer somewhere in the text of a blog post) anytime I’m writing about a case in which I’m involved, even as an amicus. Whether or not the relevant ethics rules require such a disclaimer, this just strikes me as common sense…

    • Bruce Green – 1 Promoted Comment

      I don’t see any ethical issue (in a disciplinary sense or otherwise) for academics who are not representing parties in a case to blog about the legal (as opposed to factual) issues with the secret hope that a judge or law clerk might read the legal analysis and be influenced. Many judges are fairly dismissive of the relevance of what legal academics write, and the academic’s hope in many cases may go unfulfilled. But suppose a judge is influenced — what’s wrong with that? Presumably the argument in the blog matters because of the persuasiveness of the argument, not the identity of the academic who presented it, and because a party failed to make the particular legal point or express it with as much cogency or persuasiveness. If so, the blog is all to the good in contributing to the fullness of the judge’s consideration — not unlike the situation in which a judge on his or her own thinks of an argument or line of analysis that did not occur to the parties. Judges are not supposed to be confined to the cases and legal arguments brought to their attention by the parties; this is a very different situation from considering facts outside the record. Ideally, in oral argument, if a judge is enamored of an analysis that neither party presented, the judge will ask questions designed to elicit a reaction to the argument. Perhaps, after all, the analysis is flawed. But judges are not obligated to provide such an opportunity to respond. For example, if a judge has an epiphany about the law after oral argument, the case need not be scheduled for reargument. Whether judges ought to read blogs (or newspapers or law review articles) is up to them, but I see no ethical reason to discourage academics from writing.

    • Stephen Gillers – 1 Promoted Comment

      If the question is whether it is a violation of lawyer ethics rules for a lawyer unaffiliated with a matter to blog about it, the answer is surely no. Rule 3.6 applies only to a lawyer who “is participating or has participated” in the matter. Prior versions of this rule were broader and raised serious First Amendment problems. Rightly so. The rule was changed.

      And who do you think may have more influence with judges: law professors blogging about a case or the editorial pages of the Times and Post? Right.

      If the blogger is participating in the matter, or once participated, the Rule does apply but even then there is no violation unless, objectively speaking, the content of the public statement “will have a substantial likelihood of materially prejudicing” the proceeding. If we’re talking about judges, not juries, I think that test is not likely to be met. We flatter ourselves to think otherwise. It is probably unwise, for other reasons, to blog about a case one is handling before a judge, but it’s a hard to think of a situation in which we can say that doing so will materially prejudice the proceeding.

      The danger of tripping over the rule is greater if the matter is an impending or (especially a) pending jury trial and the blog posts could plausibly reach the jurors, depending even then on content. For example, we can imagine revealing inadmissible but inflammatory information in a blog post that a juror in a case then on trial may discover. This would be a serious mistake.

      • Monroe Freedman – 1 Promoted Comment

        I don’t see any difference in First Amendment terms between a law professor blogging to influence a pending case, and a N.Y. Times editorial or an Adam Liptak column doing the same thing.

        Nor do I see any problem with law professors exercising their First Amendment right to petition for redress of grievances,and their First Amendment right of speech, by filing amicus briefs.

        As for criminal-defense and civil lawyers blogging about their cases and why they should win, this too is protected by the First Amendment. See Freedman & Smith, Understanding Lawyers’ Ethics, 101-105, 302-306 (4th ed., 2010). Lawyers shouldn’t try to get inadmissible evidence before jurors, but the proper way to control that, after a trial has begun, is to for judges to prevent jurors from logging into blogs.

    • Douglas A. Berman – 2 Promoted Comments

      On the flip side of Tom’s basic query, my own reason for sometimes seeking to influence courts through my blog postings is because it is as a practical matter very hard — and in my view, MUCH too hard — for an informed/interested lawyer (let alone an informed/interested citizen) to share her knowledge and insights with a court.

      Finding and following all the logistical rules (not to mention the costs in time/energy/money) for filing an amicus brief in many appellate courts is overwhelming for all but a very few special (and often well-to-do) litigants or interest groups. Especially for a full-time academic like me without significant administrative support or resources to help with even electronic court filings, the logistical burdens of writing/filing/serving a formal amicus brief at the circuit/SCOTUS level are often overwhelming and prevent me from even trying to share my friendly advice to courts in the traditional manner.

      In contrast, of course, there are ZERO logistical/practical issues to keep me from blogging on a pending case and from thereby “serving” my friendly thoughts on all those who come by my blog. Indeed, via my blog I not only can/will discuss how I think/hope an issue might be resolved, but I also can/will engage directly with others who may have different opinions AND I can modify/adjust my friendly court advice in “real” time in a way that written briefs cannot be readily modified.

      Stated differently, I think blogs fill an important gap created by the many restrictions on engagement by non-parties in the litigation process. Of course, there are lots of good reasons for many (formal and informal) restrictions on engagement by non-parties in the litigation process. But I have often wondered if some courts might be well served in some special/hard cases — particularly state and lower federal appeals courts — if they created an easy on-line means for interested/knowledgeable non-parties to submit information and ideas about an important issue/case.

      For example, suppose if the US circuit courts, upon voting to take a case en banc, created a dedicated website just for that case on which, say for a period of two weeks PRIOR TO ANY RE-BRIEFING BY THE PARTIES, anyone could submit short “letter briefs” for all to see on the issue to be considered en banc. Alternatively, perhaps certain litigants might foster this kind of dialogue through on-line means, especially if/when an issue before a court might seem properly influenced by data that perhaps only non-lawyers know well (e.g., whether a broad sex offender residency restriction would functionally prevent certain persons from living in certain cities).

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss whether and when blog posts in fact do influence courts.

    • David Post – 1 Promoted Comment

      http://volokh.com/2011/10/19/hey-2d-circuit/

      I suppose, having called my blog posting “Hey, 2d Circuit!” that it’s fair to say it was a blog posting that was intended to get the eyes and ears of the judges hearing the YouTube-Viacom appeal (or their clerks), and, though several commenters raised the question about the ethics of what I did, I fail to see any good argument to suggest that what I did crossed any sort of ethical line. The notion that courts are not to decide cases on the basis of anything outside of the record — an important principle, to be sure — does not mean that judges should not read the newspapers or expose themselves to commentary about what is at stake in litigation before them and the effect that their decision might have on the rest of the world.

      I agree with what I believe Stephen Gillers (who knows a great deal more about these matters than I do) and others have said: members of the public have a right to comment on matters before the courts, and any rule that prohibited lawyers from exercising that right would raise very profound First Amendment problems.

      There are limits, to be sure. Again, several people have noted that the Rules of Professional do restrict lawyers who have been engaged to represent the litigants, from this kind of commentary. And I think, for my own ethical code, I draw an important distinction between private and public commentary. I would not send a private letter to a judge’s chambers saying “here’s what I think about this case,” — even (or especially) where I have an ongoing relationship with the judge that might otherwise make private communications between us appropriate. The inability of the litigants to have access to that communication intended to change the judge’s mind would make it a much different, and in my opinion inappropriate, step to take. But the public should be debating the merits of the Viacom-Youtube case because it has important implications for the world we live in, as a member of the public I have a right to participate in that debate, and I hope the judges on the Second Circuit are aware of and understand the dimensions of that debate.

    • Orin Kerr – 4 Promoted Comments

      I am shocked — shocked— to find that influencing courts is going on in here!

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss any specific examples of posts that you think implicate these questions.

    • Rick Hasen – 4 Promoted Comments

      There seems no doubt that blogs do influence courts, including the Supreme Court. In a recent speech, Justice Kennedy said that his law clerks turn to blogs for legal commentary on cases which are too recent to be the subject of commentary in the law reviews. Courts have cited to blog posts in their opinions, and briefs increasingly cite to such posts. In my own field, the New York Times credited a blog post of mine with getting a federal district court to reconsider an opinion on the constitutionality of the federal ban on corporate contributions to candidate elections. (A lot of good it did: the judge reconsidered and reached the same result, with the case now on appeal to the Fourth Circuit.) It is no surprise that courts and litigants turn to legal blogs, especially those which specialize in particular subject areas. Here you have specialists in the field willing to opine on the very issue before the court, an issue in which expert opinion can be useful and welcome.

    • Steve Vladeck – 3 Promoted Comments

      It’s hard to know if it made a difference, but there was a cert. petition in an IFP case a couple of years ago that hadn’t received any attention (including on SCOTUSblog) until a couple of law profs, myself included, blogged about it. The Court ended up granting the case [Haywood v. Drown, 556 U.S. 729 (2009)] and reversing the New York Court of Appeals on the merits. Whether or not the blogging helped draw the case to the attention of the Justices’ clerks, I’m sure there are other examples, especially at the Supreme Court level, where blogging helped to elevate the profile of cases that might otherwise have ended up in the dregs of the cert. pool…

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