Sunday, May 10, 2009

Scholarship alert: "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in The Internet Era"

This is a very interesting student note in the Stanford Law Review that explores the ethical implications, in light of Kennedy v. Louisiana, of attorneys trying to influence the outcome of a case by blogging about it.  As you may recall, the Kennedy decision raised the question of the constitutionality of the death penalty for child rape.  A blogger noted that the Supreme Court mistakenly concluded:

that Congress had chosen not to make child rape a capital offense, when in reality, in 2006, Congress amended the Uniform Code of Military Justice to add child rape to the military death penalty. When the omission was revealed, the State of Louisiana sought rehearing, arguing that the new information undermined the Court's conclusion that the death penalty for child rape was unconstitutional. Ultimately, the Court affirmed its decision, with Justice Kennedy writing that military law was not relevant to its conclusion.

In the student note by Rachel C. Lee, the author raises the possibility that attorneys in the future may try to "game" the outcome of a case by creating a blogosphere buzz about it.

Here's the abstract:

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. Events surrounding the recent decision in

Kennedy v. Louisiana demonstrate that blogs can both highlight errors in Court decisions and generate new arguments relevant to ongoing litigation. In addition, legal blogs create the opportunity for Supreme Court advocates to engage in ex parte blogging—posting persuasive material about a pending case in the hopes of directly influencing the Court’s decisions. Attorneys for parties and amici in cases before the Court already sometimes post arguments online about their cases shortly after oral argument—potentially a crucial time in the Court’s decision-making process—and evidence suggests that the Justices and their clerks may well encounter some of these posts online. Yet no one has analyzed the ethical implications of this practice, or what its effects might be on different groups appearing before the Court. This Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications. The Note concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Thus, the legal profession should consider regulating ex parte blogging, despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues.

The full article can be found at 61 Stan. L. Rev. 1535 (2009).

Hat tip to Legal Blog Watch.

I am the scholarship dude.


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