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Are Blogs the New 'Friends of the Court'?

Are blogs the new friends of the courts? That's one of the issues that Howard Bashman examines in this  Law.com commentary,  "Viewing Law Blogs as a Vast Amicus Brief" (7/24/06). Bashman writes:

With increasing regularity, the legal blogosphere generates these types of discussions of noteworthy pending cases, and it is not unusual for those discussions to include thoughtful recommendations about how a court should rule based on existing law and policy considerations. In such instances, the Internet can be regarded as a vast amicus brief through which legal experts who are otherwise unconnected to pending court cases may potentially influence their outcomes.

So what are appellate judges to do when they come across relevant discussion from the blogosphere on a case pending review? Must judges ignore the information and limit themselves to what's in the record? Or should they consider the recommendations and ideas raised by bloggers? Bashman examines both sides of the argument, but here's how he comes down:

In my view, if the blog post is publicly available to anyone with Internet access, and if the blogger has not taken any steps other than publishing the post to draw it to the attention of the judges before whom a case is pending, then those judges are free to consider and rely on that information if they find it to be helpful. Such a blog post cannot be viewed as an impermissible ex parte communication any more than a New York Times editorial endorsing a particular outcome in a pending U.S. Supreme Court case could be viewed as such.

Furthermore, in my view, it is preferable for the appellate judge who becomes aware of an Internet posting about a pending case, written by someone with particular expertise in the area of the law at issue, to read the posting instead of refusing to consider it. The more informed a judge can become about the nuances of a particular area of the law before issuing a ruling, the more likely it is that the court will issue the best possible ruling in the case.

Bashman's conclusion makes sense to me. At the same time, if judges are going to take blog postings into account, how does this affect lawyers in practice? When we're handling appeals, should we go out and find credible bloggers who will post on our behalf? Should we make a point of  posting our briefs online so that we can attract bloggers to support our position? Where judges rely on a blog post, must they include the post in a citation? And would bloggers, particularly law professors, compete to see who could garner the most mentions in judicial opinions? Would firms that file "glamor" amici just to attach their name to a case stop doing so and blog about the case instead?

What do you view as some of the implications of treating the blogosphere as an amicus brief? Is it something you support?

Posted by Carolyn Elefant on July 24, 2006 at 06:08 PM | Permalink | Comments (0)

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