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Today in the Community: November 4, 2011

Today in the Community we discuss class actions in the aftermath of Wal-Mart v. Dukes. Last Term, in Wal-Mart v. Dukes, the Supreme Court overturned the certification of one of the largest employment discrimination class actions in history.  In so doing, it addressed a range of questions regarding class actions, some technical (regarding the differences between the requirements for various kinds of class actions and the relief they may seek) and some more general, including questions about when a class action may proceed on behalf of workers at different locations and with different supervisors.  In the months that followed the Court’s decision, lawyers for class-action plaintiffs and defendants have been scrambling to assess the impact of the Wal-Mart case and adjust their litigation strategies accordingly.

Five great comments from yesterday’s discussion of blogging with an eye to influencing the courts are below.

Stephen Gillers

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.


Steve Vladeck

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

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.


Monroe Freedman

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

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).


Recommended Citation: Kevin Russell, Today in the Community: November 4, 2011, SCOTUSblog (Nov. 4, 2011, 8:52 AM),