J. Robert Brown considers the potential effect of legal blogging on judicial decisions. Any such influence would be difficult to quantify. Even when a judicial decision cites a blog, it is hard to know whether the blog in question actually influenced the case’s outcome. Nonetheless, there are occasional instances in which it is quite probable blogging influenced judicial behavior.
Daniel Charlies says:
Of course they do!
And this new health care insurance mandate is clearly unconstitutional…
December 21, 2009, 1:13 pmChris Travers says:
What about indirect influence?
For example, what about the possibility that Groklaw influenced the SCO lawsuits by providing a place where technical analysis, copyright claims, etc. could be better vetted? (I am not saying the fine lawyers at IBM or Novell needed help, but I wonder if it helped defeat The SCO Group.)
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December 21, 2009, 5:38 pmGene Madison says:
I have to wonder…. Do comments on blogs influence judicial decisions?
December 22, 2009, 1:35 ampublic_defender says:
Well-written blogs (like well-written law review articles) can also have significant influence in discretionary appeal cases by highlighting important issues and conflicting cases. Even if judges don’t notice them, attorneys do, and that can shape how issues get framed in a case. On another lever, if a clerk finds his or her way to a blog, it could have an influence in the same way an amicus brief has an influence.
Clearly, bloggers have a First Amendment right to blog about cases, but attorneys with blogs could create ethical problems by blogging about their own cases, especially if it appears that the attorneys are trying to communicate with the court. In appellate cases, a blog could act as a prohibited sur-reply. Also, since you can cite to the web, you could post something one a blog that you couldn’t get into the record and then cite to it in your brief.
I also don’t know about the ethics of clerks looking at blog posts on cases the clerks are working on. It’s something new. Are clerks allowed to watch the news to get information about a case? I would think that if clerks are not allowed to watch the news to get information about a case before them, they should not read blogs. It’s always been OK to look at law review articles, but the traditional publishing schedule made it unlikely that a clerk would find a law review article specifically directed at a current case.
December 22, 2009, 6:09 am