Court Citing Blog:

The dissent from denial of rehearing en banc in United States v. Scott, a Ninth Circuit case involving the Fourth Amendment rights of pretrial detainees, says this in footnote 5:

It is also worth noting that the majority's opinion has been criticized regarding its negative repercussions for criminal defendants and the defense bar in general. Judge Bybee observes in his dissent that [details omitted -EV] .... Judge Bybee's foresight has been echoed by the defense bar, noting that even though the majority is attempting to protect 'the ideal espoused in our legal system that a citizen is innocent until proven guilty, ... it is only fair to point to the problems that this may create from a policy standpoint. If all suspects charged with a crime retain all their rights if they are released, why would the state release them? I mean, they have to set reasonable bail, but if the accused cannot afford this bail, (so mainly the poor), they will have to remain behind bars until their trial.' (last accessed June 1, 2006). Even the Harvard Law Review has criticized the majority's reasoning: [details omitted -EV] ... 119 HARV. L. REV. 1630, 1630-31 (Mar. 2006) (footnotes omitted). The law review also states: [details omitted -EV].

Let me begin by congratulations Sean Sirrine, who wrote the De Novo post to which the opinion linked. But let me also point out one complexity in linking to blog posts: It's often not completely clear what the author does for a living (unlike with law review articles, where the author's note is usually quite explicit on that).

Sirrine, it turns out, wrote that post a few weeks into his first year of law school; that surely isn't reason to ignore the post, and Sirrine is one of those law students who has thought a lot about law before going to school. Still, it seems to be a mistake to call him a member of "the defense bar."

And this mistake also shows the need for a bit of extra care when describing the authors of blog posts, op-eds, and other publications that don't make the author's affiliation clear. Many blogs, like this one, do clearly indicate their authors' affiliations, but De Novo and Sirrine's other blog, Objective Justice, don't seem to.

Careful readers might also have noticed that the footnote in the dissent oddly refers to a criticism expressed by "the Harvard Law Review"; yet of course the Review as an institution almost never expresses its institutional opinion in its page (as, say, the New York Times may), but rather presents the opinions of others. (The Review does make a judgment about the quality of the works it publishes, but that doesn't mean an endorsement of the criticisms that the works make.)

The cited item, as one might gather from the lack of author and title, is a Recent Case mini-article written by an anonymous law student -- a source that's perfectly legitimate to cite (as is a blog), but one that probably should be characterized as "an article in the Harvard Law Review criticizes" or "a casenote in the Harvard Law Review criticize" rather than just as "the Harvard Law Review criticizes." On the other hand, lawyers who are reading the dissent will almost certainly realize that "the Harvard Law Review criticizes" must mean "an item in the Harvard Law criticizes," and will thus not be misled by the characterization.

Eh Nonymous (mail) (www):
If nobody's misled, then most of the time there's not a problem with sloppy characterization.

I've already seen at least one case in which opposing counsel quibble with a citation to a guest opinion posted on a blog, in the course of which they fail to notice that the blog host is not the same person as the author. Not relevant (except insofar as it weakens the credibility of the side making the mistake, if it is pointed out). But a bit annoying.

Better editing and sourcing means more effort, which (perhaps) means less time and effort spent on substantive writing.
6.12.2006 4:07pm
telley (mail):
Sean is dropped out before first semester finals.
6.12.2006 4:34pm
telley (mail):
Sorry, typo. Sean dropped out before taking first semester finals. So it makes the link to his post even more interesting. He is not even a law student.
6.12.2006 4:36pm
logicnazi (mail) (www):
I fail to see the issue here. Either the blog post makes a compelling argument or it does not. It hardly matters what the author does for a living or who he is.

Should lawyers avoid valid legal points just because they are brought up by non-lawyers? I think not, no more than it is acceptable for scientists to ignore experimental results or new theories just because the person creating them doesn't have a Ph.D.

Of course both lawyers and scientists have a limited amount of time and when deciding whether to spend time reading an article or not it makes sense to consider who the author is as a guide to how likely the article is to contain valid points. However, this isn't an argument not to cite articles written by lay people but only one about how best to divide up one's time. If you have already read the article by the layperson and found it compelling then you no longer have any grounds to give it less weight than an article written by a lawyer or scientist.

The only defensible grounds I can see for not citing blogs written by non-lawyers is if you are relying on the author of the post as an authority. That is you are trusting information contained in the post to be true based on the author's professional standing. Here I agree that one should be more inclined to take an attorney's claims on legal history or a scientists claims on some calculation as true without double checking them than a layperson's claims. However, I would hope that a court choosing to cite a blog would make sure to double check any factual claims on which the post relies.
6.12.2006 4:51pm
Marcus1 (mail) (www):
If it's anonymous, doesn't that effectively make it the Harvard Law Review? If a publication says something, without pawning it off to somebody else, it seems to me that it's a statement of the publication, unless I'm missing something...

Or unless it disclaims it in some other way. I can't really see the implication that there was some high-level editorial board who decided on this criticism, though. Seems kind of like a matter of style, I guess; whether you want to understate your authority or put it in a strong light. Calling it an anonymous article probably would have unjustifiably undermined the point...
6.12.2006 4:55pm
John (mail):
The problem really is that judges are cite crazy. They can't say anything unless it is "supported" by something some one else has said.

Wasn't there a Sup. Ct. Justice who said something like, "I don't need citations. When I say it, it is the law."
6.12.2006 4:56pm
Marcus1 (mail) (www):
Well, as far as the blog, I'd guess that the writer of the opinion gleaned the point from that blog. In which case, don't they kind of have to cite to the blog? Sometimes you cite for authority, but sometimes you cite not to plagiarize. And sometimes when doing the latter, you put it into a narrative to make it sound more like the former...
6.12.2006 5:01pm
logicnazi (mail) (www):
So what would you have a judge do who reads a blog post that raises a compelling point he hadn't yet thought of? If the blog is anonymous he can't gather any information on who made the point yet surely he is obligated to cite the material rather than presenting the idea as his own.

Anyway I'm posting again to comment on the substance of the deciscion. In particular I am uncompelled by the De Novo argument. As I understand the concept of bail it exists only to guarantee the defendant will not flee and will present himself at trial. Any agreement to reduce bail based on restrictions on the defendant's rights seem to be prima facia evidence that the prosecution does not truly believe the larger bail is necessery to guarantee the defendant will show up for trial as behavior restrictions do nothing to guarantee the defendant won't flee.

Still you might argue, as De Novo seems to, that while demanding concescions to liberty in exchange for freedom is wrong it avoids the greater harm of keeping people in jail unfairly. However, this exact same argument could be used to prove that throwing out evidence obtained through improper searches is bad as it will encourage police to lie about the manner they aquired the evidence. No doubt this is true to some extent but the rule is nevertheless a good one as police are less inclined to perjur themselves than they are to conduct invalid searches and the court can evaluate (imperfectly) the honesty of the police.

Similarly, the court has the power to review bail requests to avoid inappropriate prosecutorial use of bail to keep someone off the streets rather than merely to prevent flight. Certainly this may be imperfect protection and the poor may be more likely to suffer but it is better than just giving up on the innocent until proven guilty principle. Besides, I have no doubt that liberty restrictions are more likely to be inflicted on the poor and those without high priced attorneys than the rich anyway so it is far from clear that poor will be any more harmed by this principle than the current one.
6.12.2006 5:06pm
Eugene Volokh (www):
LogicNazi: I had thought I'd responded to your first point quite expressly in my post. "[That the post is by a law student] surely isn't reason to ignore the post, and Sirrine is one of those law students who has thought a lot about law before going to school. Still, it seems to be a mistake to call him a member of 'the defense bar.'" My objection isn't to the opinion's citing someone who isn't a lawyer; it's to the opinion's mistakenly characterizing the cited person's identity. Maybe the opinion should have just referred to "a commentator," and not tried to stress the commentator's supposedly relevant identity by calling him a member of "the defense bar." But if the opinion does want to stress the commentator's professional affiliation, it seems to me that it ought to get it right.
6.12.2006 5:12pm
Eugene Volokh (www):
Marcus1: Your post leads me to think that the opinion's reference to "the Harvard Law Review" was more likely to be misleading than I thought it would be.

It most certainly is not the case that, if an item is anonymous, "that effectively make[s] it the Harvard Law Review? If a publication says something, without pawning it off to somebody else, it seems to me that it's a statement of the publication, unless I'm missing something." The Harvard Law Review routinely publishes student articles without giving the student's name, but this is not intended to make the articles "a statement of the publication." The editorial board doesn't endorse the article's conclusions, though it may, as I said, express a judgment that the article generally passes some reasonable standards of good writing and thoughtful reasoning.

As to "I can't really see the implication that there was some high-level editorial board who decided on this criticism, though," that too seems like a mistake. When we say a publication says something, I think we nearly invariably mean that this was said by some authority that speaks for the publication -- for instance, the editor or the editorial board. When we say that the New York Times expresses some view, my sense is that this means this is the view expressed in a Times editorial. We would never say that, I think, about an anonymous op-ed published in the Times. (As I mentioned, this may be less of a problem in the legal field, but only because most readers would understand that the piece is an anonymous student note, and therefore that "the Harvard Law Review has criticized the majority's reasoning" is something of a misstatement.)

Finally, as to "[c]alling it an anonymous article probably would have unjustifiably undermined the point": I'm not sure that this is so, but in any case my recommendation would be to properly say that this was a Harvard Law Review article or a Harvard Law Review student note; my suggestion was not to stress the article's anonymity, but rather to avoid asserting that the article expresses a criticism by "the Harvard Law Review."
6.12.2006 5:20pm
Just a complicating factor on the citation to "the Harvard Law Review." Eugene is of course entirely correct that the student notes are not endorsed (or even screened for quality!) by the Review's board or by some subset of the board, although there are some efforts to ensure that authors do a decent job. But there is some truth to the attribution, namely that the Review all but requires case comments to be written in the format "right result, wrong reason [or wrong approach]," "right approach, wrong result," or "entirely wrong." Thus, the Review in a sense endorsed the notion that the case was wrongly decided precisely because the Review has endorsed the notion that *every* case is wrongly decided.

Thus, to whatever extent you want to credit the arguments in the comment, the notion that it was a fair measure of the opinion's worth is bogus, since the author read the opinion looking to find a way to question it, and I've not yet found the law student who cannot niggle out some problem with every case he reads.

I'm not sure where that leaves things, but it does seem to undermine the citation a bit (in my mind).
6.12.2006 5:37pm
Bob Loblaw (www):
What's even more surprising than the fact the dissent would cite a law student's blog as evidence of the position of the "defense bar" is that they would cite it despite its complete misconception of the majority holding:

If all suspects charged with a crime retain all their rights if they are released, why would the state release them?
Putting aside that there might be plenty of reasons to do so (lack of jail space? a desire to allow citizens who have not been convicted of a crime to retain as much liberty as is reasonable?), and putting aside the fact that if you accept that logic then it's hard to understand why the state would release suspects even if they didn't retain all their rights, the majority in no way says that "all suspects" charged with a crime retain "all of their rights" upon release.

Rather, they say that THIS suspect (and other similarly situated suspects for whom the government has not made a particularized showing of the connection between drug use and showing up for trial) cannot be coerced into giving up his FOURTH AMENDMENT rights against unreasonable search and seizure. That's it. There was a list of eight conditions to his release (including not being allowed to possess firearms), and only the search and seizure conditions were held unconstitutional.

I can understand a first year law student making this overbroad claim, but I can't understand a panel of appellate judges repeating it.
6.12.2006 5:56pm
Harvard Law Review Editor:
Confused, as an actual editor on the harvard law review, I can say that your comment is completely wrong.

First, for a non-Supreme Court case comment like this one, editors have the absolute discretion to choose any case they want to comment about, as long as it was decided in the last year. (It doesn't even have to be a circuit case - it can be a state case, an international case, or even something like a statute or international agreement.) Therefore, the student editor was not "assigned" the case, and forced to come up with an argument that the case was wrong. Rather, the student editor was permitted to choose any case he wanted to.

As well, editors can say whatever they want about a case - there is no requirement that you argue that the case was wrongly decided. Of course, most comments will criticize the reasoning, at least to some extent. This is because when an editor chooses a case, he is rarely going to choose a case about which his only viewpoint is "yep, the majority was 100%, this was an easy case."

In summary, to the extent that the editor's assignment consisted of "choose whatever case you want, write whatever you want about it," I don't think his reasoning can be criticized as bogus because he felt somehow coerced into quibbling with the reasoning of this particular panel.
6.12.2006 6:17pm
Walk It:
So is it fair to say in comparison, you're declaiming responsibility for Bernstein's posts, before he writes something outrageous and makes too much an ass of himself (and perhaps your blog)?
6.12.2006 6:22pm
Tennessean (mail):
Even if it may not be the way things are actually done behind the scenes at the HLR, I don't think that it is wholly unfair to attribute to the HLR the positions taken in an un-attributed piece published therein.

Certainly, the HLR exercises some editorial control over the piece. Attribution is both a way of saying this is theirs and a way of saying this is not ours. If the HLR declines to attribute the article (or even to affirmatively indicate that it was written by some anonymous author, see the citation to the recent cases note in 119 Harv. L. Rev. 2187), HLR is affirmatively declining the opportunity to distance itself editorially. HLR can, if it wants, affirmatively distance itself from the piece in any number of ways, e.g., publish the author's name or indicate the author is anonymous.

In many other contexts, unattributed pieces are attributed to the publishing body. There is no reason I see not to do so here (especially since their supposed attribution practice is apparently not widely known).
6.12.2006 6:32pm
Marcus1 (mail) (www):
Prof. Volokh,

Alright, I'd say that's a part I was missing.

I'd still be curious to see the presentment, though. And isn't a law review student-run anyway? So wouldn't the only implication from asserting that it was said by the Law Review be that a student, or a group of students, agreed to (publish) it? Even if anonymous articles aren't considered "by the Law Review," I'm not sure the same is true of little case notes. Could the Board have said, "Take that line out; this is a case note, not a personal opinion"?
6.12.2006 6:45pm
Eugene Volokh (www):
Tennesseean: Student case notes, by Harvard tradition, are always anonymous. It's not an article-by-article decision -- it's just the way things are. Harvard doesn't "indicate the author is anonymous" on an article-by-article basis because the pieces are always anonymous.

It thus seems to me not quite correct for judges who know this to say that "the Harvard Law Review criticizes" an opinion when it was just a single (ableit unknown) author who criticized the opinion. As I noted above, the error is probably not that serious because most readers would recognize it as an error. But if the attribution practice is indeed "not widely known," as you suggest, then the error becomes much more serious, because it would lead many readers to falsely believe group endorsement by the Harvard Law Review, where the article was actually only the opinion of its author.
6.12.2006 6:51pm
Eugene Volokh (www):
Marcus1: Harvard Law Review casenotes are supposed to include the author's personal opinion, as well as an objective description of the case.
6.12.2006 6:54pm
CLR alum (mail):
In response to Tennessean's point, I'd note also that anonymous student notes have until fairly recently been the tradition at most major law reviews. The basis for this rule is not entirely clear to me — perhaps it has something to do with the relative unimportance of law students compared to established writers, or perhaps it stems from the comparatively easy process of getting a note (as opposed to an article) published (at Harvard, it's basically automatic). Whatever the explanation, most schools have jettisoned the practice. Harvard is the key exception; Columbia has adopted a strange compromise where notes are identified by author in the table of contents and the first page of the note, but not on the cover of the law review issue. In any event, EV is certainly correct that the note author, whether or not he signs his name to the work, does not speak for the journal.
6.12.2006 7:10pm
Harvard Law Review Editor:
The basis for the rule (in theory) is that student notes are collaborative efforts - numerous editors contribute to the pieces through substantive reads, cite checks, and proofreads, and thus it would be misleading to attribute it to one person. In practice, I think most editors would feel a bit uncomfortable and arrogant changing the rule to insist on having our names in the law review after years of anonymity. Anonymity also has a certain modesty and old-school feeling I find appealing.
6.12.2006 7:19pm
Eugene Volokh (www):
Apropos telley's point: Sean Sirrine tells me, "As far as the school thing goes, I had to take an academic leave of absence until next year. I had some family issues that I needed to sort out, and commuting to Portland from Boise every week wasn't helping the process. So in effect, I'm still a first year."
6.12.2006 7:20pm
Marcus1 (mail) (www):
>numerous editors contribute to the pieces through substantive reads, cite checks, and proofreads, and thus it would be misleading to attribute it to one person.<

Ah ha!

Explain that, Volokh...
6.12.2006 7:31pm
Tennessean (mail):
I stand by my point -- the error, if there is one, belongs to the HLR for insisting on a practice that is uncommon, likely to mislead, and of no real benefit. Legal practicioners (including judge's) should spend their time thinking and writing, not seeking out and learning esoteric citation practices.

If the judge's alleged error adds marginally to the decision to yield to a better manner of attribution to the HLR, all the better.

(Moreover, the most recent HLR editor suggests that the anonymity stems to some extent from the fact that these are produced by a group of HLR editors. So we have an article produced by a group, approved by the whole, and not attributed to anyone -- pretty close to being fairly attributed to the HLR.)

Whatever HLR may want their lack of attribution to mean, there is some truth to the modified utterance of S. Cavell - we must mean what we say.
6.12.2006 7:36pm
CLR alum (mail):
Tennessean replies: "Legal practicioners (including judge's) should spend their time thinking and writing, not seeking out and learning esoteric citation practices."

No. Legal practioners (including judges) should go to Harvard, so that they need not "see[k] out and lear[n] [deeply rooted] citation practices."
6.12.2006 7:40pm
Tennessean (mail):
FWIW, according to the HLR, "This policy [unsigned student work] reflects the fact that many members of the Review, besides the author, make a contribution to each published piece."

Accordingly, it would be apparently improper to say attribute the piece to one anonymous author. Are we asking the judge to attribute the piece to "The group of unidentified HLR editors who worked on the piece"? The other solutions suggested above (e.g., calling it a Harvard Law Review article or a Harvard Law Review student note) do not do the trick -- for someone who already knows what is going on, they are no more or less informative than the judge's mistake, and for someone who doesn't, they both (but especially the first) convey the same meaning the judge explicitly outlined.
6.12.2006 7:54pm
Tennessean (mail):
(I apologize for the mistakes of haphazard typing apparently endemic to my comments.)
6.12.2006 7:56pm
CLR alum (mail):
I think the claim that Harvard notes are collaborative efforts is misleading. There is one, and only one, author who takes responsibility for the work. Although he receives considerable assistance from others, I don't think that makes the work "produced by a group" -- any more than is an article written by a professor with assitance from multiple research assistants and thorough journal editors. (For this reason, I am not inclined to accept HLR editor's theory that it would be misleading to attribute the work to a single author -- it proves too much.) And I don't think anyone should believe that HLR notes are "approved by the whole," as the whole neither votes on them nor has instituted any content-based approval process. (Witness the debate over the intelligent design piece a few years ago.)
6.12.2006 7:56pm
Harvard Law Review Editor:
Just to be clear, each piece does have a specific author. The piece cited by the Ninth Circuit was conceived and executed by one person; the opinion expressed is his opinion. The substantive reads and cite checks involve other editors making substantive suggestions, but the original author may take them or leave them at his or her discretion. (Most authors take many substantive suggestions, but it's not mandatory.) The president has the authority to prevent publication of the piece that she thinks is completely terrible, but the standard of review is EXTREMELY deferential (the president will only block publication if the piece is embarassing, unacceptable, or "completely wrong").
6.12.2006 7:58pm
Harvard Law Review Editor:
CLR alum, I think you are basically right; each piece does have a specific author. Harvard's practice is, in my opinion, more motivated on tradition and modesty. (The majority of editors seem to like it the way it is, as do I).
6.12.2006 8:00pm
Eugene Volokh (www):
I think we're going around in circles, but let me post one more brief reply: Marcus1, as the people who are pretty knowledgeable about the process have made clear, the substantive message of the article is not being endorsed by the journal. No-one who's familiar with the way the Harvard Law Review operates believes that the substantive message is being endorsed by the journal. For historical (and now idiosyncratic) reasons, the Harvard Law Review doesn't want the notes to be signed. But all the talk of group effort, it's group effort in editing, cite-checking, and advising -- not in a group deciding what point of view to take, and endorsing that point of view.

Tennesseean: Judges, like other writers, have an obligation not to mislead readers, even inadvertently. The only reason I think this error might be slight is my assumption that in fact lawyer readers will be misled. If I'm wrong, then the error is quite serious.

As to the Harvard Law Review, law reviews, unlike newspapers, almost never publish their own institutional views. If they do, it'll usually be something like "A Note from the Editor" or "A Note from the Editorial Board" or some such. I'm not a fan of the anonymous note policy; but the policy is quite unlikely to mislead readers of the Law Review.

Finally, if any lawyers out there disagree with me, and can say that they thought views published in anonymous casenotes in the Harvard Law Review were indeed the opinion of the journal generally, please let me know.
6.12.2006 8:42pm
Tennessean (mail):
Circles are the best way to talk!

The point, of course, is just as you say. Either lawyers will not be misled (because most attorneys know the HLR policy, which is clearly not the case -- indeed, most lawyers were not law review editors anywhere) or they will be misled, in which case I suggest again that the cause of the confusion is as much the HLR policy as any purported error in citation.

"Judges, like other writers, have an obligation not to mislead readers" is exactly true, but it extends to the HLR editors in the same manner it extends to the judge.
6.12.2006 9:19pm
Marcus1 (mail) (www):
For what it's worth, Tennessean has expressed my actual sentiment: If the HLR publishes things without disclaiming them, their mysterious practices are their own deal. They're still responsible (and attributable) for what it says.

What it doesn't necessarily mean, I think, is that some group of people actually got together and decided editorial-style to endorse this particular argument. It doesn't mean that Harvard University endorses this argument. Or that the majority of the Editorial Board of the HLR endorse the argument. In the end, I'm not sure anybody in the world can actually be assumed to believe what's in the HLR. But if the HLR says it without disclaimer, then I say it can be attributed to the HLR. For what purpose? Basically, I think, just to say that this is an argument that made its way into a publication with Harvard's name in it. Maybe a little more than that, but not much.

So maybe a true understanding of the HLR is one that recognizes that it isn't an editorial device. Thus, an attribution to it just doesn't mean the same thing as an attribution to the NY Times or WSJ. It's a totally different process -- not substantively democratic, but merely a source of analysis -- with an assumption of some kind of quality screen. As long as lawyers recognize that, all of our other misunderstandings re: the HLR don't seem so much to matter.

Honestly, though, I'm kind of surprised if there is no disclaimer. Why wouldn't there be?
6.12.2006 10:16pm
logicnazi (mail) (www):

Ahh, thanks for the clarification. I thought the bit about the characterization was about a seperate footnote refering to something in the Harvard Law Review. If your worry about the De Novo citation was just the way it was attributed then I agree completely.
6.13.2006 2:59am