Judges have discovered the Internet’s 600 legal blogs, citing them at least 32 times in 27 decisions over the last two years.
A blog, short for Web log, is a Web page that acts as a continuous journal of the writer’s commentary, news and links to related sites. Blogs began, often as personal diaries, in the 1990s but came into their own in recent years among lawyers who use them to share with peers the latest developments in legal specialties.
The ability to burrow deeply into a specialized area of the law with continuous updates has an undeniable appeal to practitioners. This phenomenon was not lost on Ian Best, a 36-year-old law school graduate who began a blog, “3L Epiphany,” as an independent study project for academic credit at Ohio State University’s Michael E. Moritz College of Law. It is a taxonomy of legal blogs. Best counted them, classified them and tracked their development.
“The most significant development is judges citing blogs,” said Best, who lives in Columbus, Ohio, and is awaiting his bar exam results.
Judge predicts more
Best has found 32 citations of legal blogs in 27 different cases dating back to 2004. Perhaps the most noted was by Justice John Paul Stevens in his dissent in an important sentencing decision, U.S. v. Booker, 543 U.S. 220 (2005). [NLJ, 2-27-06].
More recently, on July 31, a 9th U.S. Circuit Court of Appeals dissent by Judge Diarmuid O’Scannlain cited commentary on law Professor Eugene Volokh’s blog, “The Volokh Conspiracy,” in Harper v. Poway Unified School Dist., 2006 U.S. App. Lexis 19164. It cited Volokh’s commentary on viewpoint discrimination and the First Amendment.
“I’m not sure I have any cosmic theories about why it’s happening,” O’Scannlain said in an interview from his Portland, Ore., chambers.
“I am sure most judges, when they see carefully articulated logic in whatever form, in a law review or published lecture or electronic form, are inclined to evaluate it and if relevant cite it,” he said. He predicted that the practice would continue to grow.
The granddaddy of all cited blogs, Ohio State law Professor Douglas Berman’s “Sentencing Law and Policy,” focuses almost exclusively on development of case law in the circuits since the Booker and Blakely decisions. His blog has been cited more than any other, 24 times in 19 opinions, including Stevens’ dissent in Booker, according to Best’s tally.
The blog “allows me, in a short space, to cover more ground than a newspaper,” Berman said. Legal work following the Booker and Blakely decisions has been “moving at cyberspeed,” he said. He described blogs as a “constantly updating treatise.”
The blog by Volokh, at the University of California, Los Angeles School of Law, has commentary on First Amendment and other constitutional issues. He said blogs “are just as citable as newspaper op-ed pages.”
Many judges may remain reticent to cite something as potentially changeable as a blog, which may cease to exist or be taken over by someone new.
Best said those are legitimate concerns.
He pointed to a case that cited a blog for a song parody-but the online reference page no longer exists. Suboh v. Borgioli, 298 F. Supp. 2d 192 (D. Mass. 2004).
“One way of solving that is with hard copy publication,” he said. “If citation becomes more prevalent there needs to be some hard copy that can be collected and official,” he said. Blog authors should also keep a cited post unchanged for future researchers he said.
But not all jurists are enamored of the new medium.
U.S. District Judge Sam Conti in San Francisco has been on the bench 37 years and still writes out opinions by hand. “You could probably find one to substantiate any position you want. I’d rather take my citations from appellate courts and the Supreme Court.”