Monday, March 7, 2011

New scholarship of interest: "The citation of blogs in judicial opinions"

This one is by Professor Lee Peoples of Oklahoma City U. School of Law and can be found at 13 Tul. J. Tech. & Intell. Prop. 39 (2010). From the introduction:

A blog is a Web site where one or more authors publish written commentary. The commentaries are published in reverse chronological order. Blog authors are typically called bloggers, and the commentaries they publish are called blog posts. According to BlogPulse, a Web site that tracks blogs, there are currently over 150,000,000 blogs on the Internet. A blawg is a blog about law. There are approximately 2800 blawgs in existence today. It is estimated that over 235 blawgs are written by law professors and at least eight are written by judges.

Blogs are used by lawyers, scholars, and others who want to have an impact in judicial decision making. Blogs have been heralded as a replacement for law review case commentary, as a vast amicus brief, and have even been compared with the Federalist Papers. Traditionally, scholars who wanted to have an impact on issues coming before the courts would try to anticipate what types of issues courts might face in future cases, spend one year or more writing and publishing an article addressing these issues, and finally hope that it would be read by a judge. The painstakingly slow law review publication process, when compared with blogs, "feels as ancient as telegrams, but slower." Prominent blogger Eugene Volokh imagined how blog posts might be a more effective way to reach judges in his article Scholarship, Blogging, and Tradeoffs: On Discovering, Disseminating, and Doing. Volokh explained that law clerks read blogs and if they happen to read a post about an issue facing the court, they might pass it along to a judge.

The Supreme Court case of Kennedy v. Louisiana is perhaps the most well-known example of a blog post that has influenced a judicial opinion. In Kennedy, the Court held that it was unconstitutional to impose the death penalty for the crime of child rape.  The majority and dissenting opinions erroneously declared that there was no federal law permitting the imposition of the death penalty for child rape. A few days after the opinion was released, Dwight Sullivan, a lawyer specializing in military justice, pointed out on his blog that in 2006, Congress revised the Uniform Code of Military Justice to include death as a punishment for the rape of a child.  The blog post was read by another military justice lawyer who mentioned it to his wife, the preeminent Supreme Court journalist, Linda Greenhouse.  Greenhouse broke the story on the front page of the New York Times.  Louisiana petitioned the Court for rehearing. The Court accepted briefs on the issue and ultimately modified its opinion acknowledging the omission of the 2006 law, but refused to change its initial decision in the case. This example, although a bit embarrassing for the Supreme Court and the lawyers involved in the case, illustrates the potential that blogs have to impact real cases.

Two previous surveys have counted the number of times specific blogs were cited in judicial opinions. No study has closely examined the citation of blogs in judicial opinions to discover why or how courts are citing blogs. This Article explains the results of my exhaustive research into the citation of blogs in judicial opinions. I began my research by exploring in further detail the blog citations in the forty cases identified in the two previous surveys.  I updated the previous surveys by searching for cases citing blogs after the two surveys were released. In Westlaw, I searched the database ALLCASES for the terms "blog" or "blawg" or "blogger" or "typepad." I ran an identical search in the LexisNexis database, Federal & State Cases Combined. The LexisNexis and Westlaw results were compared to ensure that the results were  comprehensive. These searches returned a total of 287 opinions. I read through these opinions and identified specific opinions citing blogs as secondary authority to support the court's reasoning or analysis, opinions that cited blogs for factual information, or opinions that cited blogs as the source of documents. Forty-five out of the 287 opinions fell into one of these three categories. I did not closely examine the 242 opinions that did not fall into one of these three categories. These 242 opinions typically cited blogs in dicta or to define a nonessential term.

Part II of this Article discusses the citation of blogs for their discussion of substantive legal issues. The unique status enjoyed by several boutique blogs is examined and the value of blogs as interactive sources is explained. Part III discusses the citation of blogs for factual information and the impact of these citations on the law of evidence, ethics of the judiciary, the constitutional and procedural rights of litigants, and the judicial role in the common law adversarial system. Finally, Part IV explores the methods used by courts to cite blogs, recently released blog citation rules, and solutions for preserving blog content.


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