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.’ http://www.blogdenovo.org/archives/001073.html (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.