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Bloggers Impacting the World of Litigation 120

Posted by kdawson
from the keeping-justice-blind dept.
DaveKleiman writes "Will bloggers change the world of Supreme Court litigation by inspecting published opinions? Rachel C. Lee has an interesting take on the question in the Stanford Law Review, Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy In the Internet Era (PDF). She begins the review with: 'Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty — they are already capable of having a substantial impact on Supreme Court litigation.' The review hits on many key points both for and against the use of blogging, but ultimately concludes that members of the Court and their staff will have to refrain from reading any blog post relating to a pending case, no matter who it is written by. It's even possible we'll get carefully drafted rules preventing blogging by attorneys." It's going to be tough to make any such prohibition work. After all, Groklaw's PJ is not an attorney.
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Bloggers Impacting the World of Litigation

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  • So instead... (Score:4, Insightful)

    by Jaysyn (203771) <jaysyn+slashdot AT gmail DOT com> on Friday May 08, 2009 @09:46AM (#27875791) Homepage Journal

    .. the law lobby will try to make it illegal for the "proles" to discuss case law.

    • Re:So instead... (Score:4, Insightful)

      by eldavojohn (898314) * <eldavojohnNO@SPAMgmail.com> on Friday May 08, 2009 @09:54AM (#27875887) Journal

      .. the law lobby will try to make it illegal for the "proles" to discuss case law.

      Uh, I don't think the Stanford Law Review was advocating that. From the lengthy PDF they do try analyze (if you can call it that) what would happen under different types of reform. They list them as such:

      • Do Nothing
      • Do Too Much
      • Regulate Parties and Amici
      • An Open Invitation to Blog
      • Regulate the Court

      I think the most outlandish thing they are proposing is stated as wildly outlandish (Do Too Much):

      Instead of doing nothing, a code of ethics could theoretically attempt to do a great deal. Regulation could be draconian: no online discussion of pending Supreme Court cases by any licensed attorney. Such a rule would obviously go too far. It would impoverish public debate regarding the Supreme Court's work, and it would be wildly unconstitutional.

      Not making it illegal, just regulating it heavily.

      • Re: (Score:2, Insightful)

        by postbigbang (761081)

        What would blatant, even anarchistic openness do that's bad? We're a nation of critics now. Whether seemingly entitled by degree or simply desire, we all get Free Assembly and Free Speech.

        Where atty/client relationships are concerned, there are already many constraints as to what can be publicly published. The court of public opinion has always had a voice, and that voice has been listened to and acknowledged. That acknowledgement might be bending or swaying to those opinions, or in many cases (thank heaven

    • Why not? (Score:5, Insightful)

      by mister_playboy (1474163) on Friday May 08, 2009 @09:55AM (#27875889)

      Even the most prideful members of /. go about saying "IANAL" almost out of sheer reflex any more. I'm tired of hearing it.

      Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.

      Persuasiveness is much more important than having good evidence in both cases. Hardly something that makes one into a socially unquestionable demigod.

      • Re:Why not? (Score:5, Funny)

        by Sir_Lewk (967686) <sirlewk@nospaM.gmail.com> on Friday May 08, 2009 @10:04AM (#27876031)

        Well IANAL but I'm willing to bet a real one would disagree with you. ;)

        • Re:Why not? (Score:5, Interesting)

          by GrifterCC (673360) on Friday May 08, 2009 @10:15AM (#27876179)
          IAAL, a plaintiffs' attorney, in fact.

          And actually, I do agree with parent. Most trials' facts are extremely close calls. The obvious cases always--ALWAYS--settle before trial. So, on these extremely close calls, it becomes a matter of persuading the jury or judge that your client's position is more correct.

          What we do isn't magic. My caselaw search engine uses Boolean operators. Law school just teaches you the magic words to look for. We investigate the facts, we investigate the rules (laws, regulations, judicial opinions), and put together an argument for applying them in the way that gets the best result for our clients, within the confines of the ethical rules that govern us.
          • Re: (Score:2, Funny)

            by Anonymous Coward

            IAAL, a plaintiffs' attorney, in fact. ...
            My caselaw search engine uses Boolean operators. Law school just teaches you the magic words to look for.

            Interesting. Does your ambulance search engine show you their locations on Google maps?

            (too easy to resist)

          • Re:Why not? (Score:5, Interesting)

            by Zordak (123132) on Friday May 08, 2009 @12:06PM (#27877419) Homepage Journal

            I work for a big firm that does a lot of insurance defense, so I'm ethically obligated to disagree with GrifterCC ;-)

            But really, while the law is not magic, it is very, very complicated. For example, if you're Average Joe, and you get served by Big Out of State Corporation (let's say it's a patent infringement case, and you're sued in the ED Tex.), your first impulse will probably be to shoot off an answer to the court saying, "No, court, they're full of it. This is nothing like their patent."

            Two problems: chances are, you have no idea how patent claims work (because, in fact, most ATTORNEYS have no idea how patent claims work), so you really don't know if you infringe. And even worse, let's say you're running your little business out of Middle of Nowhere, ND, you've never left the state, and all your sales are local. Congratulations! You've just consented to jurisdiction in the great state of Texas! No going back. No do-overs. No appeals. You're going to Marshall.

            Yes, you could have done some research on personal jurisdiction. Yes, you could have read Pennoyer v. Neff and International Shoe and the whole line of cases (after which, you would be even more confused). Yes, you could have gone down to the nearest law school library and done some research on special appearances, but you didn't even know that you needed to.

            You hire a lawyer not because he knows everything, but because he has a pretty good idea of what he doesn't know and where to look for answers.

            And since I'm a patent attorney, I have to throw this in: drafting patents (especially the claims) pretty much is black magic. Pro se patent applications (including pro se applications drafted by attorneys who are not patent attorneys) are almost uniformly worthless. Do not try this at home. You will fail. It will not blend.

            • by Trepidity (597)

              I mostly agree, but I think there is a range of middle grounds. Many people see the law as some sort of black magic that they couldn't possibly understand without "being a lawyer", much like many people view "programming" as this mythical thing that mere mortals couldn't ever even think of doing. I think both views are somewhat harmful on the whole, even if lawyers and programmers are still necessary: it would be better if a significant percentage of people (at least to whom it was relevant) had basic under

              • Re:Why not? (Score:5, Informative)

                by Zordak (123132) on Friday May 08, 2009 @02:32PM (#27879709) Homepage Journal

                Ironically, if people understood the law better, I'd probably have more work. People who understand the legal issues surrounding general partnerships and inventions know that they are playing with fire if they don't have some kind of LLC or S-Corp. to put their stuff in. They know how important it is to document things and think in advance. And they know that in school and practice I've seen a lot of issues they've never even considered, so I can draft language that will help prevent problems from arising. It's not because I'm smarter than they are. Some of my clients are absolute geniuses (others, not so much). It's because this is what I do every day.

                I just litigated a case where (depending on whom you believe) either A stole B's invention after "leaving the fold," or B tried to come in and pretend he (and their loose partnership) was involved with the invention after he saw that A was on the brink of making a lot of money. Nasty, nasty business divorce. And the whole issue could have been avoided if the parties had a clear agreement in the first place.

            • and you get served by Big Out of State Corporation

              If you get sued by the RIAA, instead of getting served, the South Park version happens: you get fucked in the a** :)

      • Re:Why not? (Score:5, Insightful)

        by langelgjm (860756) on Friday May 08, 2009 @10:06AM (#27876051) Journal

        While there will probably be some lawyer who will post a contradictory comment, here's my take:

        I've taken a general IP law course at one of the top law schools in the country. (I won't say the exact ranking to leave some mystery.) The thing that struck me is that you really need no specific background to understand this stuff. If my kids ever decide they want to go to law school, I'm not going to let them be taken in by people who say they should be doing a specific pre-law track. It's nonsense.

        One of my friends did classics and linguistics as her undergrad, and got a full ride to a first-tier law school. On the other hand, if you want to do patent law, you need a technical background - science or engineering undergraduate degree (at least if you want to do the patent bar and be able to practice).

        Really, if you can read and comprehend, you can understand the material. The challenge is that there is a bulk of it - now that I've taken this IP law class, I understand all the basic pitfalls, but since I don't know civil procedure, I have no idea exactly how lawsuits are filed, etc. But I have a feeling that if I got a civil procedure textbook, I'd be able to read and understand it without much trouble.

        • since I don't know civil procedure, I have no idea exactly how lawsuits are filed, etc

          Just FYI, IANAL but I did just graduate from law school. I passed Civil Procedure and Federal Courts, and I clerked for the Utah Supreme Court. And I still have only vague impressions of who I would need to call if I wanted to file a lawsuit, motion, brief, etc. Most legal practice is learned as an associate with a law firm.

          Law professors (insipidly) claim that law school exists to teach you to "think like a lawyer,"

          • "Law could easily be an undergraduate track, or perhaps a one year graduate degree, as it is in many countries around the world. " But then how would you keep everyone out of your lucrative field?
        • I expect you would. Civil procedure isn't (for the most part) particularly complicated.

          But there's no way the average person is going to just *know* how to apply for directions, how to draft a witness statement, how to complete a claim form so that they can claim interest, which court they should be applying to, which statutes apply (and where to find them and to check they're in force still etc), what defences the other side may use etc etc. You're right - none of these things are particularly hard to find

      • Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.

        Well, I hate lawyers more than the next guy but they do more than that. I mean, do you know your state's law code (those books are huge)? Do you know all case histories on a particular subject? Do you have access to every single one of these cases? Do you spend 40+ hours a week reading this stuff? Is being misinformed dangerous when you're talking about the law?

        It reminds me so much of the free energy nuts like this guy [cheniere.org] that haven't spent years and years studying physics and are missing something

        • Re:Why not? (Score:5, Insightful)

          by xouumalperxe (815707) on Friday May 08, 2009 @10:42AM (#27876489)

          Well, I hate lawyers more than the next guy but they do more than that. I mean, do you know your state's law code (those books are huge)? Do you know all case histories on a particular subject? Do you have access to every single one of these cases? Do you spend 40+ hours a week reading this stuff? Is being misinformed dangerous when you're talking about the law?

          See it this way: how much studying does it take to have a really good grasp of the .NET framework, or the J2EE class library, or whatever other big programming environment you care to mention? A programmer's work is, in its fundamentals, much the same as a lawyer's: spend all week applying researching how to achieve your goals or minimize your losses, writing up your results, and they both heavily favour a mixture of experience (or knowledge) and talent expressing yourself -- be it in code or in speech. Both juries and compilers can be tricked into accepting things that are really really wrong, at times. There's nothing special about a lawyer's work in and of itself, the importance is the subject matter.

          Should a lawyer or judge really be held accountable for not taking every average citizen's two cents into account for a case? I think not. I am arguing for the "do nothing, ex parte blogging is fine the way it is" scenario presented in the paper. I am definitely against people being unable to discuss cases and pro-free speech but we are almost always massively uninformed so leave it as nothing more than blogging.

          The biggest virtue of this stance (and why I also favour it) is that I'm free to make up my own mind about who to read and who to ignore.

          • The problem is that the .NET framework or the J2EE class library is not adding 3,000 pages of documented or undocumented features per week, unlike the judicial system. From statutory law at the state level, the federal level, and municipal bylaws to judicial decisions at the local, circuit, and Supreme Court level there's an immense amount of material to wade through.

            • The problem is that the .NET framework or the J2EE class library is not adding 3,000 pages of documented or undocumented features per week, unlike the judicial system. From statutory law at the state level, the federal level, and municipal bylaws to judicial decisions at the local, circuit, and Supreme Court level there's an immense amount of material to wade through.

              You have much faith in the development teams of such packages :). Seriously though, I explicitly didn't compare the professions in absolute terms. My point was more that, even if being a lawyer involves knowing a lot of stuff, that's not fundamentally different from other jobs like being a programmer, even if they might differ in scale. Much in the same way that being a physician isn't fundamentally different from being a physiotherapist, they just differ on matters of scale.

              However, you seemed to miss one

      • Re:Why not? (Score:5, Informative)

        by GrifterCC (673360) on Friday May 08, 2009 @10:10AM (#27876107)
        IAAL, but I am not your lawyer.

        The legitimate, if somewhat carebearish, reason they do that, whether they know it or not, is that if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

        "IANAL" hedges heavily against that. Just like when I invoke "IAALBIANYL" when I comment on legal stuff.
        • Re:Why not? (Score:4, Insightful)

          by Anonymous Coward on Friday May 08, 2009 @10:15AM (#27876183)

          if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

          And yet, if your kind would say "tough luck toots, yer an idiot" to the idiots, it wouldn't be a problem. Instead, you say "well, this case looks tough, it'll be $200 an hour and I'll probably need 80 hours over the next two days to get started, and that's before it even goes to trial".

          • I'll probably need 80 hours over the next [48 hours] to get started

            Are you implying that it's the lawyers or their clients who suck at math? ;)

        • by clickety6 (141178)

          Of course, if she actually follows your advice and makes a load of money, then you can bill her for millions...!

        • by Jurily (900488)

          f someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

          What. The. Fuck.

          How can someone reasonably believe they're getting legal advice on a site with the motto "news for nerds" from random morons who might not even live in that country?

          Quick test: Murder is legal as long as you're only killing your wife. This post constitutes legal advice.

          Now sue me.

          • by xlation (228159) *

            The ethics rules/courts tend to weigh heavily on the side of protecting the "client"

            It's probably not reasonable, in most cases, to expect a forum
            poster is your attorney, but there is no reason why you can't
            create an attorney-client relationship on an online forum.

            If someone makes a claim, the "reasonableness" test is a point that will end up in litigation. By clearly stating that you are not their lawyer, you are hoping to make it so unlikely the plaintiff will will, they won't bother to file in the first

            • by Jurily (900488)

              You missed one of my points. U.S. law does not affect me.

              And of course, reasonableness would be much easier to determine, if the laws were based on common sense. You know, like if stuff can be copied for free with devices found in most households and companies, maybe you shouldn't criminalize the act based on laws dating back to steam engines.

          • Re: (Score:1, Funny)

            by Anonymous Coward

            I'll see you in court!

            --
            H. Reiser

        • The legitimate, if somewhat carebearish, reason they do that, whether they know it or not, is that if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

          You think that's why most slashdotters do that? You're very generous. I suspect most slashdot readers did not know that little tidbit of info until you posted it. Instead, they say IANAL because it leaves an "out" for when someone more knowledgeable comes along. It's almost like a talisman against being insulted by someone who knows what thye're talking about...

          • by maharb (1534501)

            I think you are on the right track but maybe when a little overboard. People say it so that they can offer insight into an issue using the knowledge they have. For instance I have taken some law classes so I feel I could offer insight into a legal discussion, but by saying I am not a lawyer I am letting everyone know that my comments may be missing something but I don't know what it is because IANAL. So yes it is creating an "out" but isn't that better than posting like you are an expert or not posting a

            • Yep - wasn't criticizing the practice. Just thinking that GP's assumption for the reasoning was probably more than a bit off-base.
        • by butlerm (3112)

          "The legitimate, if somewhat carebearish, reason they do that, whether they know it or not, is that if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice"

          If that is the precedent, it ought to be changed. The rational rule is the same as contract law - if there is a contract (money changes hands etc.) then liability for faulty advice is created. Otherwise what is to prevent half of the world for sui

        • The legitimate, if somewhat carebearish, reason they do that, whether they know it or not, is that if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

          IAAGeek, BIANYGeek. Random strangers are much more likely to follow my off-the-cuff technical advice than your legal advice, if for no reason but convenience: they can click or type my instructions without leaving their chair and immediately see if they worked. I have never, ever, heard of someone suing over poor (or even malicious) technical advice. Why is law different on that? Serious question.

          • I have never, ever, heard of someone suing over poor (or even malicious) technical advice. Why is law different on that? Serious question.

            Hedley-Byrne, although it's a UK, not an American case. was taught to us in my (Canadian) "Law for Engineers" course. In 1964, a business sued a bank over a letter in which the bank seemed to have said that a company was solvent. Hedley-Byrne entered into a business arrangement with the firm, the firm went under owing lots of money. The judge ruled in favour of Hedle

        • if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

          I took your advice and stopped blogging about my law practice. Now I get half as many clients. There's a court summons heading your way!

          ;)

      • by AndersOSU (873247)

        about prideful lawers:

        One argument that struck me from the law review article was that blogging would unfairly advantage the well equipped (those who routinely argue before the supreme court and business interests). In fact, that might be the only argument laid out who's antithesis isn't examined.

        The argument goes like this: there are only a handful of people who have the experience to influence the court at such a high level, so if a new avenue of communication is opened they will exploit it at the expens

      • Re: (Score:3, Funny)

        by Jurily (900488)

        when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.

        $.10 for tapping with the hammer
        $.10 for knowing where to tap
        $999.80 for being allowed to.

      • Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner. Persuasiveness is much more important than having good evidence in both cases. Hardly something that makes one into a socially unquestionable demigod.

        You know, you're partly right. A number of law schools hire prominent rhetoricians to teach logic and argument (it does make sense - the discipline of rhetoric evolved from Greek legal practices and the Sophists, who trained people how to argue for various public purposes).

        Stanley Fish, who became fairly well known in academic circles for his contributions to English literary criticism, began applying his rhetorical methods to public policy and law, and eventually was hired as a professor of both Englis

      • Why is the acronym necessary at all? We're all "just posters" unless positively identified with a stronger qualification. Every post is Caveat Lector, all the way from Rick to the just-barely-wrong posts.

        It's a scary tossup between the self-deprecation, and the Freudian sight-gag. If I had to pin it down, I'd blame Nixon's "I Am Not A Crook".

    • by aoheno (645574)

      .. the law lobby will try to make it illegal for the "proles" to discuss case law.

      That includes lawyers, politicians (who are lawyers), lobbyists (who are lawyers), judges (who are lawyers), district attorneys (who are lawyers), doctors (who try to become lawyers when medicine exhausts them), special interests (who hire lawyers), as well as regulators and law enforcement (who do the bidding of lawyers).

      That leaves the rest of us at the mercy of natural selection instead of creationism.

  • I haven't read all of the 39 pages of this report but from what I gather, I don't see why this should be any different than scientific blogging (or, in pre-internet terms, armchair science).

    Example: I read Bryan William Jones' blog [utah.edu]. It sometimes has scientific topics although rarely anything new. Let's say Dr. Jones makes some important discovery in a field he is not an expert in ... like bird behavior. And it's a significant contribution to that field. Maybe he realizes what he's discovered and maybe he doesn't know the intricacies of bird behavior so he blogs about it.

    Is this a peer reviewed published piece of research? No. Is it important to the field? It might be. Should he get credit? Yes. Should bird behaviorists be required to read every blog on the internet looking for a breakthrough? No. Could it go unnoticed? Yes. Will this happen often? Highly unlikely. Will Dr. Jones rare footage of the endangered African Upside-down tufted titmouse's in flight mating dance be a hit to the general public who like little birdies? Probably.

    I see lawyering in a similar light. You expect the laywers and judges involved in a case to be completely on top of everything and knowledgable about everything (try to suppress laughter, please). But of course someone like Groklaw's PJ could bust out a piece of work putting more of the puzzle together than any of the inept dinosaurs running the show. Similar questions and answers may follow this scenario as in the case of the blogging scientist. Most importantly, that this position may be popular with the public but it's not a part of the case unless someone involved takes note and makes it so and puts it into the spotlight (or Bird Behavioral Journal in the former example).

    That said, there is one serious flaw in this analogy. Science is usually correct or wrong. And usually easily decided (upon reflection, perhaps I should have used something more hotly contested like quantum theory instead of a bird dance). Law, as we all know here, is not only many shades of gray but also something that many people on the internet get emotional about (which is a good thing) and think they are experts in (which is a bad thing). I have not read the legal minutiae of my state or even country. I know the popular things and I extrapolate on them--almost always erroneously.

    In short, I would opine that it would be a violation of free speech to outlaw it and dangerous if not stupid to make it legally important. There is a reason for the BAR exam. If you have not passed that, you probably just want to be a citizen on a soapbox instead of a legal target.

    Blogging is by and large a disposable medium that can be morphed into important things by the appropriate people. It is satisfying to express one's ideas like I am doing right now. Leave it that way.
    • by Sir_Lewk (967686)

      There is a reason for the BAR exam.

      Yeah, we can't have every Tom, Dick, and Harry running around with Browning Automatic Rifles!

    • by Alaren (682568) on Friday May 08, 2009 @10:10AM (#27876097)

      You make some good points, but you focus on the problem from the perspective of the average blogger--while the Article is about blogging from the perspective of the courts.

      The reason this is seen as a problem is that liberalism (small "l," brought to us courtesy of Hobbes and Locke) originated as a Natural Law philosophy, and it was assumed that decisions were best made by "neutral arbiters." Appellate judges or clerks or in some cases attorneys who read blogs may be (gasp!) influenced by viewpoints that are not rooted in the record.

      Of course, this happens all the time, in other ways. Positivism has largely supplanted naturalism in our jurisprudence, but we've never adapted our court systems accordingly (for various reasons, not all of them bad). Contemporary western philosophy--though, importantly, not contemporary lay thought on legal practice--scoffs at the idea of a "neutral arbiter."

      This doesn't mean judges should actively seek input from every available source--that would be disaster. The fact that "neutral" is impossible doesn't mean it isn't a worthy goal, and the judiciary should pursue it so far as they're able without becoming so neutral as to stop caring about justice.

      But that's the real question here--not whether your average blogger can write legally important things, but whether an appellate judge should be reading case material that isn't in the record. The obvious answer is "no," so the question then becomes, "how do we make this happen in an information age?" Because it would seem silly to tell a SCOTUS justice, "you can no longer read the Volokh conspiracy, just in case something relevant is said" or whatever; after all, judges will have read "The Tempting of America" and "There's No Such Thing As Free Speech" and everything in-between, and these will doubtless influence them even though they don't directly address particular cases (usually). But it would also be illegal to tell Professor Volokh & crew, "you can no longer blog because you're attorneys."

      It's an interesting problem and an interesting article, but the tech angle is strictly utilitarian; this is a problem of legal ethics.

      • but whether an appellate judge should be reading case material that isn't in the record. The obvious answer is "no,"

        I disagree - judges should have any information which is both relevant and true (or probably true with a quantification of 'probably' and reasons for that) at their disposal.
        Justice is not served by handing judges the opportunity to make wrong decisions because of wilful ignorance of objective reality.

        For instance, say there's a dispute over a car accident (got to get a car in here somewhere),

        • by AndersOSU (873247)

          no way.

          The reason the material a judge gets to see is so tightly controlled is because the legal system has spent ~1000 years figuring out how to make sure that information is credible. If you're going to let a judge go off and conduct his own investigation the big problem you're going to run into is astroturfing.

          Let's talk about that car accident - the judge goes online and finds your flickr account and sees some photos that clearly indicate the accident wasn't your fault. Now, were those photos genuine,

          • I never said that he should go to my Flickr. I said that he should go to the actual physical junction and see for himself what the layout of the junction is. I never said that judges should use sources provided by either side, or of unknown provenance. I specifically said that they should know where the source has come from, and how reliable this makes it ("probably true with a quantification of 'probably' and reasons for that"). A random flickr account would be unreliable and wouldn't be considered (and I'

            • by AndersOSU (873247)

              I agree, it makes sense, but you quickly run into line-drawing problems.

              Theoretically, a technical question has a "correct" answer, but in reality technical experts disagree all the time. Looking at the intersection seems like a no brainer, but if you're letting the judge investigate, he might also want to know who was in the intersection first, and he might be able to determine that by consulting some kind of auto-forensic expert. The judge might never know if that expert has conflicts of interest. Idea

  • by mc1138 (718275) on Friday May 08, 2009 @09:51AM (#27875855) Homepage
    While this isn't the case for all blogs, there are a vast amount that aren't tied into sponsors, or wheels inside wheels that would prevent them for really exposing activities as such. There are too many cautious media moguls out there that don't want to hurt their base that news because a glossed over sort of event. People are afraid to try and expose something and be wrong, ie Dan Rather and the Bush Vietnam debacle. Yes its good to verify information, but at the same time sometimes one needs to have a little guts when trying to expose the truth.
  • absurd (Score:2, Insightful)

    by Anonymous Coward

    This is absurd. Supreme Court Justices are allowed to do their own research. Traditionally, this has included everything from cases (even cases from foreign jurisdictions) to law review articles. I don't think that anyone can pretend that law review articles have never taken sides in a Supreme Court controversy.

    Why should blogs be treated any differently? I see no reason. I suspect this author wants to take active steps to maintain the influence of law reviews. It's not terribly surprising. The influ

    • by guruevi (827432)

      Because sometimes these blogs put difficult stuff in a plain language and express an opinion about it (and others may comment on the stupidity of it) and some legal types (read: RIAA, patent lawyers, ...) don't like that.

      Wouldn't it be great if judges would include 'expert' advice from Slashdot or tech columnists when ruling on certain cases. Absurdities like the DMCA, most software patents and the RIAA cases would hardly be ruled favorably for.

  • by fuzzyfuzzyfungus (1223518) on Friday May 08, 2009 @09:58AM (#27875949) Journal
    I'm not sure that the use of blogs is different in anything but(possibly) degree from what has happened since pretty much the beginning of law.

    It is (barring the replacement of statutes with strong-AI lawbots) impossible to write law that is self interpreting. Interpretation is inevitable. And, given the way humans are wired, culture and people outside the case writing about law, legal theory, and the case itself, will inevitably influence that interpretation.

    Blogs are different than law journals, in that they aren't subject to peer review or anything(though, a lot of law blogs are published under real names, and putting your reputation on the line has an effect); but they are rather similar to other sources of input on lawyers and judges(half remembered newspaper clips, life experiences, conversations with colleagues and friends, and so forth). Blogs widen the circle of informal discourse a bit, just as email has a broader reach than snail mail; but it doesn't strike me as a genuinely novel development.

    For that reason(and because I'm leery of interference with speech in general) the notion of restricting blogs seems both absurd and dangerous. Obviously, being on the internet doesn't free you from the usual rules of confidentiality, good taste, and so forth; but it is no more dangerous than other venues of informal discourse, which aren't restricted.
    • by Zerth (26112)

      Really, is a blog in this case that much different than somebody handing out pamphlets near the courthouse? (other than geographical availability) If the newspaper had found out the fact from an intern with a law hobby instead of a blog, would much have changed?

      This is just another facet on "how can/should judges be influenced", which has been discussed for quite some time. The only really new part is that obscure facts are less likely to fall through the cracks, but the same would happen if there weren't

  • by dwheeler (321049) on Friday May 08, 2009 @10:08AM (#27876079) Homepage Journal

    The idea that "judges must not read blogs" is absurdly extreme. We don't forbid judges from reading newspapers; why are bloggers suddenly called out for special mistreatment? It's true that we don't let juries look at stuff because they're not familiar with the details of what is or is not permissible evidence, but judges do have such training.

    In fact, the article opens with Kennedy v. Louisiana, where blogging was a tremendous help. In this case, the Supreme Court's ruling was based on wrong information, and the bloggers pointed this mistake out. Kudos to the authors for being brave enough to point to this as an example. In any case, it shows that bloggers can have a very positive effect on court outcomes, by calling attention to critical mistakes in the court's information.

    I want to see people more involved in political discourse. If they know that their discussions can't possibly have any effect, then they're less likely to have such discourse. Heck, I think that's why we have such low voter turnout... too many people think "my vote can't make any difference".

    I do agree that there's a risk of hearing more of one side than another, but the direct presentations to judges along with research that the judges themselves do should help counter that. The other extremes seem worse than the problem they're trying to cure.

    • Re: (Score:3, Insightful)

      by Red Flayer (890720)

      I do agree that there's a risk of hearing more of one side than another, but the direct presentations to judges along with research that the judges themselves do should help counter that. The other extremes seem worse than the problem they're trying to cure.

      The problem is that the judge is then introducing "testimony" (for lack of a better word) into the case. And if that testimony helps one side, the other side does not have the chance to present information or analysis that is counter to the testimony.

      • by maxume (22995)

        I don't think it is that big a problem. Ideally, judges are chosen because they demonstrate a history of fairness, not because they are a blank slate. If a judge can reasonably set aside his life experience, he can reasonably be expected to set aside (or just ignore) information and opinions about a case (I find it reasonable to expect a judge to ignore poorly and weakly sourced information).

    • I agree because the internet has become the greatest tool that average citizens have to participate in the democratic process. To restrict their free speech is a restriction on the power of citizens to effect change on their government. Free speech is a cornerstone of America, and should not be forfeited due to a supposed "clouding" of a judge's final bottom-line.
    • by mangu (126918)

      In fact, the article opens with Kennedy v. Louisiana, where blogging was a tremendous help. In this case, the Supreme Court's ruling was based on wrong information, and the bloggers pointed this mistake out.

      What if that mistake were in the personal interest of the blogger? How can one be sure he didn't omit some crucial detail? A court of law is supposed to be neutral with both sides having equal access. If the judge reads one blog, shouldn't he read *all* of the millions of blogs on the internet?

      Of course,

    • by AndersOSU (873247)

      We don't forbid judges from reading newspapers

      Actually, according to the article, we do:

      the judicial rule and its comments broadly instruct judges and their clerks not to gather a variety of types of information, some of which might well be published. The model rule states that a judge âoeshall not investigate facts in a matter independently...

      ...if a judge wishes to avail himself or herself of the advice of a disinterested legal expert regarding âoethe law applicable to a proceeding,â the Ju

  • by Locke2005 (849178) on Friday May 08, 2009 @10:08AM (#27876083)
    Why should a blog be treated any differently than an amicus curiae [wikipedia.org] brief? People are entitled to have and express their opinions, and judges have the right to not read them. Personally, I think crowdsourcing legal arguments would make for better law; there would be fewer missed points in arguments, and therefore fewer bad precedents. Finally, I don't see how telling bloggers to STFU could be viewed as anything but a violation of the First Amendment. What may be valid is the blocking of jurors' access to blogs, as jurors aren't allowed access to any evidence not approved by the judge.
    • Newspapers, journalist (tv and print), and the those who taught them, have a lot invested in the current system. As such they strive to portray their columns as always without bias and to portray blogs as always biased. See, papers want us to believe that opinion is confined to the opinion page when it is clearly not. The easiest method available to any journalist to express their bias is by omission.

      The real mud in the eye was then Dan Rather used obviously fake documents to smear then President George

      • by Locke2005 (849178)
        Newspapers, journalist (tv and print), and the those who taught them, have a lot invested in the current system. As such they strive to portray their columns as always without bias and to portray blogs as always biased. Absolutely. In fact, Fox News' slogan is "Fair and Balanced!" Aw shit... I can't say that with a straight face! As Jon Stewart said, they do report two sides to every issue -- both Bush's and Cheney's!

        I agree that everyone has a bias, and I always attempt to factor that bias in whenever I
    • by Nematode (197503)

      The major difference with amicus briefs is that those are filed on the record, by identified parties, with copies delivered to all the litigants. If something in the brief is false, inaccurate, or misleading - or even just arguable - it can be argued and/or reply-briefed by a party who disputes it.

      It's the basic difference between adversarial and inquisitorial justice systems. Judges reading blogs about pending cases is blurring that line.
      Of course, it doesn't follow that preventing blogging by lawyers is

    • Re: (Score:3, Insightful)

      by AndersOSU (873247)

      The argument is that if blogs are available to the judge, they shouldn't be treated differently from amicus briefs - who's timing, rigor, and content are very tightly controlled, and an opportunity to respond is presented - unlike blog posts.

  • members of the Court and their staff will have to refrain from reading any blog post relating to a pending case, no matter who it is written by. I sincerely doubt that someone can progress to the level of appointment to the supreme court without having learned to recognize bullshit when they see it, so I don't see the rationale for this.
    • by Nematode (197503)

      It's not that judges and clerks can't "recognize bullshit," it's that it's not their job in an adversarial system to do so - it's up to the parties. Reading assertions of fact or law on a blog can be problematic. The judge might read a fact that was specifically excluded from evidence, on any number of grounds. The judge might read a fact that is disputed, wrong, or even untrue, without knowing that it's untrue. But again, in an adversarial system, the parties are entitled to know what evidence is presen

      • by Locke2005 (849178)
        The judge might read a fact that was specifically excluded from evidence, on any number of grounds. I was under the impression that it was the judge that decided what should be excluded from evidence in the first place.

        Yes, it is an adversarial system. Unless the blogger is committing fraud, anything that a judge might read in a blog is an argument that should have been put forth by one side or the other. (You don't think lawyers ever cite cases that has been overturned by subsequent case law?) I do admit
      • by PPH (736903)

        It's not that judges and clerks can't "recognize bullshit," it's that it's not their job in an adversarial system to do so - it's up to the parties.

        But that's a large part of what is wrong with our judicial system today. The adversarial part. Its designed to let the opposing sides 'game' a trial by filtering the evidence and testimony that will be presented. A system where each side would present their case and then the judge or jury could request more information, expert testimony, etc. to clarify each position would be far superior to the situation we have now.

        Granted, in the case of a jury, the presiding judge is far more qualified to understand th

      • The judge might read a fact that is disputed, wrong, or even untrue, without knowing that it's untrue. But again, in an adversarial system, the parties are entitled to know what evidence is presented to the trier of fact, and are obligated to make their own cases.

        Well, a Supreme Court justice making a ruling on a Wikipedia entry would be bad. But SCOTUS examines the lawers. I believe that during motions, so do regular justices. So, the judge can bring in whatever outside information he wants without any

    • by Zordak (123132)

      I sincerely doubt that someone can progress to the level of appointment to the supreme court without having learned to recognize bullshit when they see it.

      You've obviously never ready any of Harry Blackmun's opinions.

      • I sincerely doubt that someone can progress to the level of appointment to the supreme court without having learned to recognize bullshit when they see it.

        You've obviously never ready any of Harry Blackmun's opinions.

        I'm from West-Europe so I have a hard time reading through the lines here. Which opinions of Harry Blackmun do you think are bullshit?

  • by Pig Hogger (10379) <pig.hogger@gmBOHRail.com minus physicist> on Friday May 08, 2009 @10:14AM (#27876167) Journal
    I happen to socially hang around a supreme court justice, with whom I share a hobby.

    In the course of their tenure, they have to carefully shield themselves from the opinion currents (socially, they will remain mostly in their family circles, and avoid big social venues), as they their job requires them to strictly adhere to the Constitution and the jurisprudence (where relevant). As a matter of course, they will avoid reading newspapers articles relating to "their" cases, and blogs naturally fall in this category.

    Whatever discussions we had about his work have been kept generic and mundane, and with the utmost care not to reveal the inner legal workings of the cases; in short, nothing more than what is available to court observers.

  • Should the judges turn off NPR whilst driving to work? Should the judges avoid watching TV? Should the judges stop reading newspapers? Should the judges not look at bumper stickers? Should the judges live alone?

    Why are blogs special?
  • by erroneus (253617) on Friday May 08, 2009 @10:54AM (#27876603) Homepage

    For once, the Libertarian Party truly had the Democratic and Republican parties over a barrel when they failed to file their candidates before the deadline in Texas. Neither Obama nor McCain should have been on the official ballots in Texas because they failed to meet the deadline for filing. With quite literally no legal explanation, the motion was denied. No reason for the denial was offered. It was just "no."

    Had it been an independent or a third party, we know what the outcome would have been and there would have been explanations citing rule of law and procedure. It would be interesting to see if this judge had ruled on similar cases concerning ballots and the like and to have their outcomes compared. This is something a great blogger might be able to pull off.

  • Some lawyers, especially judges and the lawyers hooked in with the various of bar associations, have a tendency to get very 'holier than thou' when it comes to the sanctity of the legal profession. They want to defend their ivory tower from incursions by the impure.

    They are unwilling to accept that law is inherently a dynamic, vital profession, both noble and filthy. A Court isn't something that sits above the world in judgment; it's something that is intimately and directly a part of world as it actually

  • It's completely absurd. It's been twisted and distorted by two centuries of legalism to the point where it's not fulfilling its function anymore, and, just like the banking system, instead of providing a non productive but necessary service, it confiscates a significant part of the GDP to keep on keepin' on.
    Take jury trial. Jury of peers, supposedly. Ok then, why are patent disputes handled by the same type of jury as a murder trial? There is something disturbing about companies making hundred of billions p

  • Haven't read the PA yet, but I think the point is that the *attorneys* themselves shouldn't be blogging. Someone like you or me, or PJ, should be able to read about a case and state our own opinions (Freedom of Speech and all that), but if you are directly involved in a case, you have to be very careful what you say, and to whom.

    OK, OK, now I'll go and read the article....

  • Please. "Impact" is not a transitive verb unless the subject happens to be a tooth.
  • Like our tax code, our laws are entirely too complex; complexity in turns yields many interpretations - so many, in fact, that in many ways our system of law is beginning to resemble a religion.

    I suspect that we are coming full circle; the only conclusive proof that I lack may yet be found in a lost scroll somewhere in the Middle East: A notation that King Solomon awarded the plaintiff's and defendant's lawyers 1/3rd of the baby apiece as fees.

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